[00:00:00] Speaker 01:
Good morning.

[00:00:00] Speaker 01:
My name is Melinda Stewart, and I represent the appellant in this case.

[00:00:05] Speaker 01:
My intent is to reserve five minutes for rebuttal.

[00:00:08] Speaker 00:
You may, but just keep an eye on the clock.

[00:00:12] Speaker 01:
There's two major points that I want to make, or three, actually.

[00:00:16] Speaker 01:
The first is that we're only at the pleading stage.

[00:00:20] Speaker 01:
So the standard should be whether the first amended complaint either has pledged sufficient facts or is capable of being amended

[00:00:28] Speaker 01:
to plead sufficient facts to show that there is at least one claim that is not barred by the statute of limitations.

[00:00:36] Speaker 01:
That is what the standard should be.

[00:00:39] Speaker 01:
The second point I want to emphasize is, as I did in the brief, is all of the claims require damages.

[00:00:45] Speaker 01:
And we cited a number of cases in our brief where homeowners filed lawsuits when there had been a notice of sale filed, where there had been demands for payment, and those claims were dismissed because

[00:00:58] Speaker 01:
That was not considered to be damages.

[00:01:00] Speaker 03:
But weren't those cases distinguishable from this situation because

[00:01:08] Speaker 03:
Mr. Nelson received notification that his mortgage was paid in 2013 and then in 2016 received notification that it was not paid in full.

[00:01:16] Speaker 03:
Meanwhile, during that three year period, he was accruing interest and the principal was not diminishing.

[00:01:22] Speaker 03:
And so he was suffering an economic loss between 2013 and 2016 years before he sold the property in 2020.

[00:01:30] Speaker 01:
But that's not actually the case.

[00:01:31] Speaker 01:
And that's not the case for the reasons that we cited, which is that a payment demand

[00:01:36] Speaker 03:
I understand that, but that's not just what happened here.

[00:01:40] Speaker 03:
It wasn't just a payment demand.

[00:01:41] Speaker 03:
At that point, he had already been financially damaged because he wasn't paying on the mortgage.

[00:01:46] Speaker 03:
And so the interest was accruing.

[00:01:49] Speaker 03:
And so as it turns out, instead of owing roughly 375,000, it was at 500,000.

[00:01:54] Speaker 03:
So it was going the wrong direction for him.

[00:01:58] Speaker 01:
But the damages had not, because first of all, he disputed it.

[00:02:01] Speaker 03:
But that doesn't matter, right?

[00:02:02] Speaker 03:
I mean, we're talking about a discovery rule.

[00:02:05] Speaker 03:
So whether he believed them when they contacted them or he disputed it, he was on notice that he needed to investigate.

[00:02:11] Speaker 03:
So then the issue is, did he have a claim because he'd suffered any damage?

[00:02:14] Speaker 03:
And it seems more like, I'll say, the Daniels case rather than the cases about demand for payment.

[00:02:21] Speaker 03:
I don't think it necessarily dooms your position on all claims, but on the fraud claims, it seems problematic.

[00:02:29] Speaker 01:
Well, I think that there's no doubt that he had discovered as far as the fraud by misrepresentation claim.

[00:02:35] Speaker 01:
I'm not going to dispute that, but the discovery rule only

[00:02:38] Speaker 01:
lengthens the statute of limitations, he still had to have incurred damages, and it was uncertain at that time whether he was going to have to pay.

[00:02:45] Speaker 03:
But uncertainty as to the amount of damages is not the same as not having damages, right?

[00:02:49] Speaker 03:
So I think we're on the same page.

[00:02:51] Speaker 03:
We agree he was put on notice, but then the issue is whether he suffered damages.

[00:02:54] Speaker 03:
And you're suggesting he did not based on cases for a claim for payment where there was no certainty that the payment would ever be required.

[00:03:02] Speaker 03:
This seems different to me because, as I've said a few times,

[00:03:06] Speaker 03:
financial damage had occurred in the three years since he had been told he didn't have to pay the mortgage.

[00:03:12] Speaker 01:
Well, I think that, um, I think the way I feel about it is there was not certainty that payment was going to be required because he could have prevailed on his dispute or they could have gone away.

[00:03:21] Speaker 01:
I mean, when he wrote back to Aquin's attorney, he never heard from them again.

[00:03:25] Speaker 01:
So I don't think at that point that was certain that he was going to have to pay anything on the loan or the amount, um, and that's really the, um,

[00:03:35] Speaker 01:
And I think that I would point out that the Vincent case is one that I think is applicable because that's one where a different court in the same district that we're in said that the actual damages do not occur until he actually lost the home.

[00:03:49] Speaker 03:
But shouldn't we look at the California cases on this, not district cases from California?

[00:03:55] Speaker 03:
So for example, Daniels is California Court of Appeals, as is Bushell, also California Court of Appeals.

[00:04:03] Speaker 03:
And they define damages and situations that seem very factually analogous to what happened here.

[00:04:10] Speaker 01:
So I think we did address the Bushman case in our reply brief.

[00:04:14] Speaker 01:
And I will go to what I said on that because I actually thought that the Bushman case supported us rather than Auckland's position.

[00:04:20] Speaker 01:
So let me see where I put that.

[00:04:28] Speaker 01:
Not sure where I put that.

[00:04:34] Speaker 01:
But I think that while I'm, oh, I did.

[00:04:36] Speaker 01:
So the Bushman case is actually also a district court case from within the Ninth Circuit.

[00:04:41] Speaker 03:
And in that case, unless I have the citation completely wrong, I'm looking at Bushall versus JP Morgan Chase Bank, which is the citation I have is to a California reporter.

[00:04:50] Speaker 03:
It's California Court of Appeal.

[00:04:53] Speaker 01:
Right.

[00:04:54] Speaker 01:
And I don't recall seeing that case in the respondent's brief, but maybe I missed it.

[00:05:00] Speaker 01:
I think that the cases that we cited from California Supreme Court and the California Appellate Court, I felt were analogous situations where there had been demands for payment that were undisputed, and that was still held not to start the statute of limitations or to constitute damages.

[00:05:16] Speaker 01:
And so I felt that the Greenwood case was analogous, as was the Pacific Pine case.

[00:05:20] Speaker 03:
So your position is that he didn't incur damages until 2020 when he sold the home.

[00:05:25] Speaker 03:
But before that, he was in foreclosure proceedings in 2019 or 2018.

[00:05:30] Speaker 01:
It started in 2019.

[00:05:32] Speaker 03:
So how was that not at a point where damages had accrued as opposed to the final sale?

[00:05:39] Speaker 01:
I think that's a logical position, but it's contrary to the position from about six or seven district courts within the Ninth Circuit that all say that that have actually dismissed claims for lack of damages.

[00:05:49] Speaker 03:
As you know, none of those, even if they say what you say, none of them are precedential or binding on this court.

[00:05:54] Speaker 03:
We need to be applying how California would define it.

[00:05:57] Speaker 03:
I would agree.

[00:05:58] Speaker 03:
Right.

[00:05:58] Speaker 03:
So we need to look at California cases.

[00:06:00] Speaker 01:
Oh, no dispute there.

[00:06:02] Speaker 01:
I think the cases are persuasive because they involve similar situations, but I would agree with you on that.

[00:06:07] Speaker 01:
I wanted to, since my time is running out here, talk about the second point, which I think is very important, which is that we've alleged a number of other claims in our emissions and negligence cause of action.

[00:06:18] Speaker 01:
And those are based on separate acts and emissions.

[00:06:21] Speaker 01:
And they are items that would be actionable even if he knew

[00:06:26] Speaker 01:
believed, accepted that he, even if Aquin had never said your loan was paid off, they would still be actionable claims because they're unrelated.

[00:06:37] Speaker 01:
And those are the issues about not correctly applying the payments that he made coming out of bankruptcy, force placing the insurance, the unjustified charges, not being able to accurately calculate the balance.

[00:06:49] Speaker 01:
And I have two points to make on that.

[00:06:51] Speaker 01:
The first is that,

[00:06:53] Speaker 01:
Some of those items did not even occur until after 2016, so we obviously could not have known about them.

[00:06:58] Speaker 03:
Right, and so that's problematic for the district court's statement that everything had occurred by 2016.

[00:07:03] Speaker 03:
That doesn't seem to be factually accurate.

[00:07:06] Speaker 01:
That's one of my points, and then the second point is that many of these items were first revealed through an investigation by the Consumer Financial Protection Bureau, and that amended complaint was first filed on October 4th of 2019.

[00:07:20] Speaker 01:
Mr. Nelson could not have known about

[00:07:23] Speaker 01:
those different facts which were analogous to the situation before receiving the complaint, he certainly doesn't have more knowledge or investigatory power than the CFPB does.

[00:07:33] Speaker 01:
And that relates to a number of different claims that we've alleged.

[00:07:36] Speaker 03:
Um, so you've alleged, I think seven respite claims or roughly seven claims, but in your reply brief, you asserted that you were not relying on a stopple for, or for the statute of limitations issue with the rest of the claims.

[00:07:53] Speaker 03:
It's three years from when the violation occurs.

[00:07:56] Speaker 03:
And some of those seem to have occurred before, um, 2018.

[00:08:01] Speaker 01:
Right, so we have our fraud by omissions cause of action, which alleges some of those earlier claims, and that's subject to the discovery rule.

[00:08:10] Speaker 01:
We have our negligence cause of action, which is subject to the discovery rule.

[00:08:14] Speaker 01:
My understanding is RESPA is not subject to the discovery rule.

[00:08:17] Speaker 03:
Right, but you could establish equitable estoppel.

[00:08:20] Speaker 03:
But I read your reply brief to say that you are not making that argument.

[00:08:23] Speaker 03:
I just want to confirm that that is the case.

[00:08:25] Speaker 01:
Not as to the RESPA claims.

[00:08:29] Speaker 01:
So I think the point I wanted to make too was that the items that were first revealed in October 2019 in the CFPB claim, that was the failure to transfer the loan to the new servicing platform, not knowing how much was owed on the loan.

[00:08:43] Speaker 01:
And a very important point is misapplying the loan payments that he had made prior to 2013.

[00:08:50] Speaker 01:
And then there's a third category, which are the items that he didn't learn of until we did discovery in the Rushmore case.

[00:08:56] Speaker 01:
Including that the insurance had been force placed on his property all throughout from 2013 continuously until 2017, 2018.

[00:09:06] Speaker 01:
And all the numerous other charges had been added to the loan that were not revealed in any documentation that he ever received from Aquin.

[00:09:14] Speaker 03:
So can you, you may not be able to answer this question.

[00:09:18] Speaker 03:
It may not be in the record, but I did not see anywhere in the record an actual date that Mr. Nelson received the loan file in August 2019.

[00:09:26] Speaker 03:
It says early August.

[00:09:27] Speaker 03:
Is there a specific date available?

[00:09:30] Speaker 01:
So he received the loan files.

[00:09:32] Speaker 01:
I think the one from Rushmore, I think the date it arrived at my office was August 3rd, but I didn't notate the date that it arrived.

[00:09:41] Speaker 01:
And so that's why I said early August.

[00:09:44] Speaker 01:
So I think it was August 3rd, but it might have been August 2nd, but it was within the first week of August.

[00:09:49] Speaker 00:
But the complaint was filed on August 2nd of 2021.

[00:09:52] Speaker 00:
Is that right?

[00:09:54] Speaker 01:
Right, and so you know what?

[00:09:55] Speaker 01:
I think it must have been August 3rd because I think I was pretty careful to make sure that the complaint I think I had like a drop deadline deadline that I had to get it filed before before two years when I received the loan file.

[00:10:07] Speaker 01:
So I'm thinking it was August 3rd.

[00:10:11] Speaker 00:
Did you want to reserve the remainder?

[00:10:12] Speaker 01:
I will thank you.

[00:10:29] Speaker 02:
Good morning.

[00:10:29] Speaker 02:
May it please the court, I'm Emily Edling, representing PHH Mortgage Corporation.

[00:10:34] Speaker 02:
As some of the questions from your honors suggest, we contend to you before your honors is a statute of limitations theory that would render limitations periods meaningless.

[00:10:44] Speaker 02:
Before us is literally a complaint regarding fraud that occurred in 2013 orally and alleged in 2014 written.

[00:10:55] Speaker 02:
The complaint was filed in 2021, but under Mr. Nelson's theory, as long as he can come up with new damages that pertain to this old fraud, he can still allege fraud.

[00:11:06] Speaker 03:
But what about his allegations that post-State 2016, there's a number of different things he alleged occurred separate from the false statement that his loan was paid off.

[00:11:16] Speaker 03:
And that struck me as difficulty with the district court's order because the district court assumed everything had happened before 2016.

[00:11:24] Speaker 02:
Yes, your honor, and I went through those allegations and didn't see anything that would give rise to a claim.

[00:11:30] Speaker 02:
He basically follows up on allegations or he follows up on his CFPB complaint, I think about a year after he originally filed one and receives another response that basically cross references the past one.

[00:11:45] Speaker 02:
And I think one of the things that we've briefed in the case is that Mr. Nelson isn't allowed to just keep doing the same things to get the same response in order to refresh the statute of limitations period.

[00:11:59] Speaker 03:
So he has a negligence claim.

[00:12:02] Speaker 03:
And some of those allegations, I thought, might pertain to his negligence claim.

[00:12:06] Speaker 03:
But in any event, you agree that you have the burden on a statute of limitations defense.

[00:12:13] Speaker 03:
I did not see any briefing on whether his negligence claim was barred by the statute of limitations in your briefing.

[00:12:20] Speaker 03:
Did you brief that somewhere, and if so, where?

[00:12:23] Speaker 02:
I think I did, but I don't have the page number for your honor.

[00:12:26] Speaker 02:
But I know one of the arguments that I believe one of the arguments that we made in it is that the statute of limitations for negligence action is even smaller.

[00:12:36] Speaker 02:
So I think it was a very short argument.

[00:12:38] Speaker 03:
Two years, right?

[00:12:39] Speaker 03:
So it's less than the three for the fraud.

[00:12:41] Speaker 02:
Exactly.

[00:12:42] Speaker 03:
But still, you still need to establish it.

[00:12:45] Speaker 03:
So you still needed to brief him.

[00:12:47] Speaker 03:
Well, we'll check it again.

[00:12:48] Speaker 03:
I don't recall seeing it in your brief.

[00:12:50] Speaker 02:
I believe it was just a very short paragraph because essentially I cross-referenced all of the points that we made with regard to our fraud claim and the statute of limitations here being even smaller, it sort of was consumed by the fraud issues.

[00:13:08] Speaker 03:
On a different point, do you

[00:13:12] Speaker 03:
believe that this court should look to the CFPB's commentary on RESPA to determine if there are private causes of action.

[00:13:26] Speaker 02:
I may have to ask leave to file supplemental brief on that.

[00:13:30] Speaker 02:
I don't remember that being an issue in the board.

[00:13:32] Speaker 03:
Well, it's your position that that the plaintiff does not have a cause of action under respite, right?

[00:13:37] Speaker 02:
It is.

[00:13:38] Speaker 03:
Yes.

[00:13:38] Speaker 03:
And we have not located, speaking only for my chambers, not my colleagues, a Ninth Circuit case addressing that.

[00:13:45] Speaker 03:
So what do we look to to decide if there is a cause of action?

[00:13:54] Speaker 02:
I don't know.

[00:13:56] Speaker 02:
You have stumped me, Your Honor.

[00:13:58] Speaker 00:
I think that- Like I said, maybe a follow-up to that is- Right.

[00:14:03] Speaker 00:
Given that I believe you devoted a sentence to it in your brief, and I think we have a sentence in the opening brief and the reply brief, since the district court didn't expressly address that question, why shouldn't we leave that?

[00:14:18] Speaker 00:
Why should we resolve it now?

[00:14:21] Speaker 00:
the question of whether there's a private right of action for violations of the regulations.

[00:14:26] Speaker 02:
I think just as far as expediency for all the parties sending this case back for a claim that happened in 2013 with a complaint that filed in 2021 is just sort of a brutal result for defendants that have been defending this case for a long time.

[00:14:46] Speaker 02:
That's the only thing I can offer offhand, and I know that's not always the way the court works.

[00:14:53] Speaker 03:
I'm not sure I would say this is brutal to the defendants, given that I don't think it's disputed that the mortgage company falsely told this man that his mortgage was paid off and sent him tax documents, and it went on and on.

[00:15:06] Speaker 02:
No, that is definitely in dispute.

[00:15:10] Speaker 02:
What we've provided with our request for judicial notice is information from the prior lawsuit

[00:15:15] Speaker 02:
And also, actually, what we provided in our supplemental excerpt of record were the actual exhibits to plaintiff's complaint, which show the correspondence that he claims said that Aquin wrote off the loan.

[00:15:30] Speaker 02:
And that correspondence absolutely doesn't say that.

[00:15:32] Speaker 03:
What about the—wasn't there 1098, 1088?

[00:15:35] Speaker 03:
I don't remember the number of the IRS form.

[00:15:38] Speaker 02:
But that document itself references the fact that the loan service transferred.

[00:15:43] Speaker 02:
So Mr. Nelson had facts in front of him to understand that there was something going on with regard to the service transfer of the loan that was causing this to be written off in

[00:15:55] Speaker 02:
Aquin system, but it didn't mean that his loan had been paid off, and there is no clear document.

[00:16:02] Speaker 02:
He attaches the documents on which he came to this belief to his complaint, and none of those documents say that.

[00:16:09] Speaker 02:
And I think the court has recognized that in the earlier Rushmore case, and to some extent,

[00:16:18] Speaker 02:
the court has some scrutiny for the case itself, because this is all coming up from a trumped up claim that Aquin told him they wrote off the loan.

[00:16:26] Speaker 02:
And there just simply is no evidence of that.

[00:16:28] Speaker 03:
What about the CFPB complaints?

[00:16:30] Speaker 03:
I mean, did that agency conclude that there was nothing to these allegations?

[00:16:34] Speaker 02:
That's not in the record.

[00:16:35] Speaker 02:
And so I don't think I can speak to that.

[00:16:39] Speaker 02:
But certainly, in the briefing, I guess we only relied on the timing issue of that, that those CFPB complaints happened so

[00:16:48] Speaker 02:
far prior to the statute of limitations in this case.

[00:16:53] Speaker 00:
Could you address the fraudulent omissions claims?

[00:16:56] Speaker 00:
The district court said that he had knowledge of everything by 2016, but some of the alleged omissions are that they didn't tell him about things that happened after 2016.

[00:17:07] Speaker 00:
Do you agree that, at least on that point, the district court's rationale is not correct?

[00:17:17] Speaker 02:
There may have been a misspeak in saying that everything happened in 2016 or earlier.

[00:17:23] Speaker 02:
I went through those allegations in the complaint myself and noticed that there were some in 2018, but I didn't find anything that happened after August.

[00:17:34] Speaker 02:
We'll see August 2.

[00:17:36] Speaker 02:
2018, which is the statute of limitations for the longest period, the three-year period.

[00:17:42] Speaker 02:
And then, of course, for negligence, it would be even shorter.

[00:17:46] Speaker 00:
But if the claim is one of fraudulent omission, isn't what matters not when the thing happened that they didn't tell him about?

[00:17:56] Speaker 00:
What matters is when he should reasonably have been on notice that they had omitted to tell him about it.

[00:18:02] Speaker 00:
Isn't that the triggering date?

[00:18:05] Speaker 02:
Yes, I agree with that, your honor, except to the extent that he's receiving notice of things that he already had notice of, which as I went through these allegations, um, you'll, for instance, the first amended complaint alleges that he received a response from Aquin dated April 18th, 2018.

[00:18:27] Speaker 02:
Um, and this again is before the statute of limitations.

[00:18:30] Speaker 02:
Um, and.

[00:18:32] Speaker 02:
This response, again, was just regarding the CFPB complaint, which he already knew he was dissatisfied with.

[00:18:39] Speaker 02:
So I think this idea that he can assert new conduct, write new letters, and refresh the statute of limitations is precluded by the California case law.

[00:18:53] Speaker 02:
And another example is the First Amendment complaint alleges that Aquin didn't respond to another letter in June 2018.

[00:19:00] Speaker 02:
But there aren't any claims based on this lack of response.

[00:19:03] Speaker 02:
And again, it's a continuing violation.

[00:19:05] Speaker 02:
So I actually went through the first amended complaint and looked for all those allegations.

[00:19:11] Speaker 02:
And there are a few references to dates after 2016.

[00:19:14] Speaker 02:
There's no question.

[00:19:16] Speaker 02:
But I didn't see anything that was within the statute of limitations or actually supported a claim for relief.

[00:19:23] Speaker 02:
Everything that he is complaining about,

[00:19:26] Speaker 02:
Loan charges that he thinks are wrong, the alleged fraud that happened in 2013, these are all things that he knew well prior to the filing of his complaint and well prior to the statute of limitations for his complaint.

[00:19:47] Speaker 02:
Your Honor, if the court has no other questions, that's all I have.

[00:19:50] Speaker 00:
Thank you.

[00:19:51] Speaker 00:
Thank you, Ms.

[00:19:52] Speaker 00:
Edling.

[00:19:54] Speaker 00:
Mr. Stewart, you have some time left.

[00:20:00] Speaker 01:
So as far as the right of a private right of action under RESPA, I was not able to find any Ninth Circuit authority, but at page 25 of the brief, I did cite the out of state authority that I was able to locate.

[00:20:12] Speaker 01:
And so while that's not binding on the court, we believe that the three cases we cited at page 25 are persuasive.

[00:20:18] Speaker 01:
They hold that there's a private right of action under all of the respite statutes.

[00:20:24] Speaker 01:
And that's the best we can do since the Ninth Circuit has not addressed that.

[00:20:29] Speaker 01:
So I wanted to mention that.

[00:20:31] Speaker 01:
Also want to, again, reiterate, although I think the point's been made, that there are a number of separate allegations.

[00:20:40] Speaker 01:
And I actually itemized them.

[00:20:42] Speaker 01:
in my outline here for the court's convenience, items that had not yet occurred as of April 2016, providing the incomplete, inaccurate, and misleading information to a subsequent servicer, the forced placing hazard insurance on the property after Mr. Nelson had provided proof of insurance, continuing to add new unjustified charges to the loan balance, and failing to reasonably investigate the CFBB complaint.

[00:21:12] Speaker 03:
Did all of those occur after October 2, 2018?

[00:21:18] Speaker 01:
Well, none of those occurred after October 2, 2018.

[00:21:24] Speaker 01:
Those were all things that occurred after April of 2016.

[00:21:29] Speaker 01:
They're all things that he had not discovered and could not have reasonably discovered in 2016.

[00:21:34] Speaker 03:
But 2016 is not a magical date.

[00:21:38] Speaker 03:
It is a date where there was some notice provided to him, but we're looking at three years before October 2nd, 2021.

[00:21:47] Speaker 03:
So to bring it within statute of limitations.

[00:21:50] Speaker 03:
So if these things all occurred before then,

[00:21:52] Speaker 03:
Even if the district court erroneously said they happened before 2016, it seems that they still happened before the statute of limitations period.

[00:22:02] Speaker 01:
That's true.

[00:22:03] Speaker 01:
But those items are all the subject to the discovery rule.

[00:22:05] Speaker 01:
And that's the other issue is that at the pleading stage, we're supposed to plead, these are things we didn't discover.

[00:22:13] Speaker 01:
This is why we didn't discover them.

[00:22:15] Speaker 01:
This is how we discovered them.

[00:22:17] Speaker 01:
And I did make a conscious effort to do a very robust pleading that addressed

[00:22:22] Speaker 01:
all of those issues that said, these are the items we didn't discover, itemize them all.

[00:22:27] Speaker 01:
And for each of them, I had a paragraph saying, this is how we discovered them, this is why we didn't discover them.

[00:22:32] Speaker 03:
Okay, so if I understand your argument, it is those things may have occurred before October 2nd, 2018, but Mr. Nelson did not discover them until he received the loan file.

[00:22:44] Speaker 01:
Some of them he did not discover until he received the loan file.

[00:22:47] Speaker 01:
Some of them he did not discover until he, until actually I saw the

[00:22:52] Speaker 01:
um, CFPB's amended complaint, which was filed on October 4th of 2019.

[00:22:57] Speaker 01:
And so obviously I couldn't have known, I didn't know about those items.

[00:23:00] Speaker 01:
Mr. Nelson certainly didn't know about those items.

[00:23:03] Speaker 01:
And those revealed a number of things that were very important, including the fact that the payments that he had made while, when he came out of bankruptcy and it was about four years worth of payments had all been misapplied.

[00:23:14] Speaker 01:
And that's a very significant amount of damage because that was quite a few payments that were made.

[00:23:19] Speaker 01:
And that was something that we didn't know.

[00:23:21] Speaker 01:
We didn't know that they hadn't never transferred the loan to its new servicing platform.

[00:23:28] Speaker 01:
And we didn't know that it couldn't calculate the loan balance.

[00:23:32] Speaker 01:
Those are all completely new issues that we were not aware of.

[00:23:36] Speaker 01:
And as I said, there were a number of issues that we didn't know of until we received the loan files.

[00:23:40] Speaker 00:
Are they really new, or do they just suggest evidence that your damages are higher than what you thought they would be?

[00:23:49] Speaker 01:
Um, I, I considered them to be new because that was when we learned that they couldn't actually tell them how much was owed on the loan.

[00:23:57] Speaker 01:
But more importantly, it explained why the loan balance was more than what it should have been given the payments that he had received because, um, we didn't actually receive an itemization of the loan balance and how it had been calculated, um, until a discovery in the Rushmore case.

[00:24:14] Speaker 01:
So that came in at the beginning of August as well.

[00:24:17] Speaker 01:
And that's when we received the detailed payoff demand.

[00:24:22] Speaker 01:
But that still didn't explain what had happened with the payments that he had already made.

[00:24:26] Speaker 01:
That was something that was first revealed in the complaint in October of 2019.

[00:24:29] Speaker 01:
Well, if the court does not have any further questions, I have 13 seconds left, so I appreciate your time.

[00:24:38] Speaker 00:
Thank you very much.

[00:24:39] Speaker 00:
We thank both counsel for the arguments in this case, and the case is submitted.