Case Number: KC069877 Hearing Date: August 22, 2018 Dept: J

Re: Michael Lee Folkes v. Wilmington Trust, N.A., et al. (KC069877)

MOTION FOR JUDGMENT ON THE PLEADINGS

Moving Parties: Defendants Select Portfolio Servicing, Inc.’s and Wilmington Trust, N.A., Successor Trustee to Citibank, N.A., as Trustee, for the Benefit of Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR3, Mortgage Pass Through Certificates, Series 2007-3’s (erroneously sued as Wilmington Trust, N.A.)

Respondent: No timely opposition filed (due 8/9/18)

POS: Moving OK

Plaintiff alleges that his residential mortgage loan was obtained through defendants’ fraudulent inducement of the loan by inflating his monthly income by 500% without his knowledge. Plaintiff also alleges that defendants have failed to properly consider his loan modification application. The complaint, filed 12/15/17, asserts causes of action against Wilmington Trust, N.A., Successor Trustee to Citibank, N.A., as Trustee, for the Benefit of Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR3, Mortgage Pass Through Certificates, Series 2007-3 (erroneously sued as Wilmington Trust, N.A.) (“Wilmington”), Select Portfolio Servicing, Inc. (“SPS”), National Default Servicing Corporation (“NDSC”) and Does 1-10 for:

1. 1. Fraud

2. 2. Intentional Misrepresentation

3. 3. Violation of Homeowner Bill of Rights—Single Point of Contact

4. 4. Violation of Homeowner Bill of Rights—Dual Tracking

5. 5. Negligence

6. 6. Violation of B&P Code § 17200

On 1/3/18, NDSC filed its Declaration of Nonmonetary Status. On 1/16/18, SPS and Wilmington filed their answer. A court trial is set for 3/4/19.

Defendants Select Portfolio Servicing, Inc. (“SPS”) and Wilmington Trust, N.A., (“Wilmington”) Successor Trustee to Citibank, N.A., as Trustee, for the Benefit of Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR3, Mortgage Pass Through Certificates, Series 2007-3 (erroneously sued as Wilmington Trust, N.A.) move per CCP § 438, for judgment on the pleadings as to all causes of action alleged in Plaintiff Michael Lee Folkes’ complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.

“Judgment on the pleadings is akin to a demurrer and is properly granted only if the complaint does not state facts sufficient to state a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Smiley v. Citibank (1995) 11 Cal.4th 138, 146). The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. (Code Civ. Proc., § 438, subd. (d).) The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Long Beach Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016, 1024.)” Shea Homes Ltd. Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.

REQUEST FOR JUDICIAL NOTICE:

Defendants’ request for judicial notice (“RJN”) is ruled on as follows: Granted as to Exhibit “1” (i.e., Deed of Trust recorded 2/15/07); Granted as to Exhibit “2” (i.e., Assignment of Deed of Trust recorded 2/2/11); Granted as to Exhibit “3” (i.e., Chapter 7 bankruptcy docket report for Case No. 2:11-bk-50478-RN [“Bankruptcy Case”]); Granted as to Exhibit “4” (i.e., petition filed 9/26/11 in the Bankruptcy Case); Granted as to Exhibit “5” (i.e., Notice of Default and Election to Sell Under Deed of Trust); Granted as to Exhibit “6” (i.e., Notice of Trustee’s Sale) and Granted as to Exhibit “7” (i.e., Tentative Ruling on defendants’ Motion for Sanctions Pursuant to California Code of Civil Procedure Section 128.7 (adopted as final, 7/26/18).

“[A] court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved of on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.

The judicially noticeable documents reflect as follows: On 2/15/07, a deed of trust was recorded on the subject property, which identified Opteum Financial Services, LLC as the lender, Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary and plaintiff as the borrower. (RJN, Exhibit “1”). On 2/2/11, an “Assignment of Deed of Trust” was recorded, wherein MERS granted, assigned, and transferred its interest in the deed of trust to Citibank, N.A., as Trustee for the Certificateholders of Structured Asset Mortgage Investments II Trust 2007-AR3 Mortgage Pass-Through Certificates, Series 2007-AR3. (Id., Exhibit “2”). On 9/26/11, plaintiff filed for Chapter 7 bankruptcy. (Id., Exhibit “3”). Plaintiff was discharged on 1/10/12, and the BK Action was terminated on 3/12/12. (Id.). The bankruptcy petition made no mention of any claims against any of the defendants. (Id., Exhibit “4”). On 1/31/17, a “Notice of Default and Election to Sell Under Deed of Trust” was recorded. (Id., Exhibit “5”). On 7/7/17, a “Notice of Trustee’s Sale” was recorded. (Id., Exhibit “6”).

At the outset, defendants contend that plaintiff is judicially estopped from prosecuting his claims in this action because he did not disclose same in his bankruptcy schedules. They are partially correct.

“’”Judicial estoppel sometimes referred to as the doctrine of preclusion of inconsistent positions, prevents a party from ‘asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding…’”…It is an “’extraordinary remed[y] to be invoked when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.’”’ (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 490-491).” Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131. “In California, courts consider five factors in determining whether to apply judicial estoppel: ‘The doctrine [most appropriately] applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.”’ (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987, quoting Jackson [v. County of Los Angeles (1997)] 60 Cal.App.4th [171,] at p. 183; accord, MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422).” Id. at 131. “Judicial estoppel is an equitable doctrine and its application by the court is discretionary.” Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.

The filing of a bankruptcy petition creates an estate comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” See 11 U.S.C. § 541(a)(1). “The scope of section 541 is broad, and includes causes of action.” Sierra Switchboard (9th Cir. 2001) 264 F.3d 936, 947. “The Bankruptcy Code and Rules ‘impose upon the bankruptcy debtors an express, affirmative duty to disclose all assets, including contingent and unliquidated claims.’ In re Coastal Plains (5th Cir. 1999) 179 F.3d [197,] at 207-208; Hay [v. First Interstate Bank of Kalispell, N.A. (9th Cir. 1992) 978 F.2d [555], at 557; 11 U.S.C. § 521(1). The debtor’s duty to disclose potential claims as assets does not end when the debtor files schedules, but instead continues for the duration of the bankruptcy proceeding. In re Coastal Plains, 179 F.3d at 208; Youngblood Group v. Lufkin Fed. Sav. & Loan Ass’n [(E.D. Tex. 1996)] 932 F.Supp. [859,] at 867; Fed. R. Bankr.P. 1009(a) (schedules may be amended as a matter of course before the case is closed).” Hamilton v. State Farm Fire & Cas. Co. (9th Cir. 2001) 270 F.3d 778, 785 (emphasis theirs).

“The meaning of ‘acceptance’ [for purposes of judicial estoppel] in the bankruptcy context is construed broadly to ‘protect[ ] the integrity of the bankruptcy process.’ Id. at 785. Among other possibilities, the grant of a discharge (even if later revoked) or the confirmation of a plan may constitute sufficient ‘acceptance’ of the accuracy of schedules so as to permit judicial estoppel.” In re An-Tze Cheng (9th Cir. BAP2004) 308 B.R. 448, 453.

Here, plaintiff’s Chapter 7 bankruptcy filed 9/26/11 resulted in a discharge on 1/10/12. (RJN, Exhibit “3”). Plaintiff did not disclose the first and second fraud-based causes of action enumerated in the complaint in his sworn schedules, despite the fact that these claims are premised on purported misconduct that pre-dated the bankruptcy (Complaint, ¶¶ 32-35). Both the discharge of plaintiff’s debts following his lack of disclosure and the benefit of the automatic stay are sufficient bases for invoking the doctrine of judicial estoppel as to these claims.

Judicial estoppel, however, would not apply to the third through sixth causes of action, inasmuch as they are predicated on conduct which transpired after the bankruptcy discharge.

Nevertheless, plaintiff’s claims fail for the following additional reasons:

FIRST AND SECOND CAUSES OF ACTION (i.e., FRAUD AND INTENTIONAL MISREPRESENTATION, RESPECTIVELY):

Defendants point out that plaintiff’s fraud-based claims are time-barred. Plaintiff concedes that he discovered the facts giving rise to his fraud claims in mid-2011. (Complaint, ¶ 37). The applicable statute of limitations for a fraud cause of action is three years. CCP § 338(d). Plaintiff did not file this action, however, until 12/15/17.

Also, plaintiff has failed to sufficiently plead his fraud-based causes of action. “The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 772, p. 1135.) Fraud in the inducement is a subset of the tort of fraud. It ‘occurs when “’the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.’”’ (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415, quoting Ford v. Shearson Lehman American Express, Inc. (1986) 180 Cal.App.3d 1011, 1028, italics omitted.).” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.

Fraud allegations…are pleaded with specificity. (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707). General and conclusory allegations are insufficient. (Lazar [v. Superior Court (1996) 12 Cal.4th 631,] at p. 645). The particularity requirement demands that a plaintiff plead facts which ‘”’show how, when, where, to whom, and by what means the representations were tendered.’”’ (Ibid.).” Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469. “Further, when a plaintiff asserts fraud against a corporation, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)” Id.

Plaintiff contends that in December 2006, a certain loan consultant named “Luan” instructed him to “provide bogus rental agreements for other real properties” “in order to inflate [his] actual income on the application” so that he would qualify for his loan. (Complaint, ¶¶ 32 & 33). Although plaintiff alleges that “Luan” was a “representative and authorized agent of Defendants,” he provides no factual support for this allegation. (Id., ¶ 32). The judicially noticeable documents reflect that neither Wilmington nor SPS originated the loan. (RJN, Exhibit “1”). Plaintiff, then, cannot establish that defendants made a misrepresentation.

Defendants’ motion for judgment on the pleadings is granted as to the first and second causes of action.

THIRD CAUSE OF ACTION (i.e., VIOLATION OF HOMEOWNER BILL OF RIGHTS—SINGLE POINT OF CONTACT):

Plaintiff’s claim for Violation of Homeowner Bill of Rights—Single Point of Contact fails. Plaintiff alleges that SPS violated Civil Code § 2923.7 by failing to assign a Single Point of Contact to him. (Complaint, ¶ 42). That provision reads, in relevant part, that “[u]pon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.” Civil Code § 2923.7(a). Subsection (e) defines a “single point of contact” as “an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described [herein]…”

As an initial matter, this provision is inapplicable to Wilmington as it was not the servicer of the loan. (See Complaint, ¶¶ 4 and 5).

Plaintiff’s allegations are vague and conclusory “contentions, deductions or conclusions of fact or law,” which are insufficient to state a cause of action. Young v. Gannon (2002) 97 Cal.App.4th 209, 220. Further, a violation of § 2923.7 is actionable only when that violation is material. Here, plaintiff has not alleged any facts as to how SPS’ failure to assign a single point of contact affected his loan obligations or the modification process. See Shupe v. Nationstar Mortgage LLC (E.D.Cal. 2017) 231 F.Supp.3d 597, 603 (granting defendant’s motion to dismiss plaintiff’s Section 2923.7 claim after determining, inter alia, that plaintiffs failed to explain “how the alleged denial of their right to a SPOC in any way affected their loan obligations or the modification process”).

Defendants’ motion for judgment on the pleadings is granted as to the third cause of action.

FOURTH CAUSE OF ACTION (i.e., VIOLATION OF HOMEOWNER BILL OF RIGHTS—DUAL TRACKING):

Plaintiff’s claim for Violation of Homeowner Bill of Rights—Dual Tracking is also deficient. Plaintiff alleges that SPS “strung [him] along and lulled them [sic] to sleep with a false sense of hope that a loan modification [was] under review, while at the same time taking the steps necessary to conduct a non-judicial foreclosure on the courthouse steps by recording a Trustee’s Sale wherein Plaintiff’s property would be sold.” (Complaint, ¶ 48). However, Section 2923.6 was repealed effective 1/1/18. “Repeal of a statute terminates all claims under that statute, even for alleged violations of the statute that occurred before the repeal. See, e.g., Beverly Hilton Hotel v. Workers’ Comp. Appeals Bd. (2009) 176 Cal.App.4th 1597, 1602, 1611 (involving injuries were sustained at a time when statute provided for rehabilitation benefits, where court held that repeal of statute in 2009 terminated all statutory claims for injuries even though they occurred before 2009). ‘If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered.’ Id. at 1604; accord, e.g., Alaei v. Rockstar, Inc. (S.D.Cal. 2016) 224 F.Supp.3d 992, 999 (‘until it is fully enforced, a statutory remedy is merely an ‘inchoate, incomplete, and unperfected’ right, which is subject to legislative abolition’) (internal brackets omitted) (quoting Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1024). ‘The justification for this rule is that all statutory remedies are pursued with full realization that the legislature may abolish the right to recover at any time.’ Palmer [v. Stassinos (N.D.Cal. 2005) 419 F. Supp.2d [1151,] at 1156 (quoting Younger v. Super. Ct. (1978) 21 Cal.3d 102, 109).” Jacobik v. Wells Fargo Bank, N.A. (2018) 2018 WL 1184812, *3. “Where the Legislature repeals a statute but intends to save the rights of litigants in pending actions, it may accomplish that purpose by including an express saving clause in the repealing act.” Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1284.

There is no express saving clause here. Defendants’ motion for judgment on the pleadings is granted as to the fourth cause of action.

FIFTH CAUSE OF ACTION (i.e., NEGLIGENCE):

Plaintiff’s Negligence cause of action against SPS fails. Plaintiff alleges that “[p]art of Defendant’s duty in servicing the loan is a duty of care in reviewing Plaintiff’s loan for modification assistance. In particular, this performance goes together with the duty of implied covenant of good faith note to impede the parties to the fair ability to perform their obligations,” that SPS owed him a duty of care according to the six factors enumerated in Biankanja v. Irving (1958) 49 Cal.2d 647, and that SPS “voluntarily assumed a duty to exercise due care in handling Plaintiff’s financial situation when [it] agreed to review Plaintiff for a loan modification.” (Complaint, ¶¶ 54 and 57-65)

“Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting

injury.” Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.

“‘The threshold element of a cause of action for negligence is the existence of a duty to use due care…’” Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137 (citation omitted). “[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money. (Wagner v. Benson (1980) 101 Cal.App.3d 27, 34-35; Fox & Carskadon Financial Corp. v. San Francisco Fed. Sav. & Loan Assn. (1975) 52 Cal.App.3d 484, 488, 489; Bradler v. Craig (1969) 274 Cal.App.2d 466, 473, 476).” Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096. “The principle that a financial institution owes no duty to a borrower has been extended to loan servicers as well. (Azzini v. Countrywide Home Loans, No. 09cv787 DMS (CAB), 2009 WL 5218042, *2 (S.D.Cal. Dec. 29, 2009); Wong v. Am. Servicing Co., Inc., No. 2:09-CV-01506 FCD/DAD, 2009 WL 5113516, *6 (E.D.Cal. Dec. 18, 2009).” Griffin v. Green Tree Servicing, LLC (2015) 2015 WL 10059081, *11.

There is a split among Ninth Circuit and California state courts with respect to whether or not lenders and loan servicers owe borrowers a duty of care in processing residential loan modification applications, as evidenced by Lueras v. BAC Home Loans Servicing (2013) 221 Cal.App.4th 49 and Alvarez v. BAC Home Loans Servicing, LP (2014) 228 Cal.App.4th 941.

Lueras reasons that “a loan modification is the renegotiation of loan terms, which falls squarely within the scope of a lending institution’s conventional role as a lender of money. A lender’s obligations to offer, consider, or approve loan modifications and to explore foreclosure alternatives are created solely by the loan documents, statutes, regulations, and relevant directives and announcements from the United States Department of the Treasury, Fannie Mae, and other governmental or quasi-governmental agencies. The Biakanja factors do not support imposition of a common law duty to offer or approve a loan modification. If the modification was necessary due to the borrower’s inability to repay the loan, the borrower’s harm, suffered from denial of a loan modification, would not be closely connected to the lender’s conduct. If the lender did not place the borrower in a position creating a need for a loan modification, then no moral blame would be attached to the lender’s conduct.” Lueras, supra, 221 Cal.App.4th at 67.

Alvarez, on the other hand, applies the Biakanja factors to hold that while a lender may not owe a duty to offer or approve a loan modification, a lender does owe a duty to a borrower to exercise reasonable care in the review of a borrower’s loan modification application once the lender agrees to review for a modification.

The reasoning applied in Lueras is more persuasive, inasmuch as the Biakanja test is inapplicable in this instant context. Biakanja provides that “[t]he determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” Biakanja, supra, 49 C.2d 647, 650. In Biakanja, the notary public defendant prepared the will of the plaintiff’s brother, which left the entire estate to the plaintiff. The will was denied probate for lack of sufficient attestation; as such, plaintiff only received her intestate share of the estate. There, the “principal question [was] whether defendant was under a duty to exercise due care to protect plaintiff from injury and was liable for damage caused plaintiff by his negligence even though they were not in privity of contract.” Id. at 648. The California Supreme Court thus restricted its decision to circumstances in which a stranger to a contract seeks to recover for harm arising from the performance of a particular contract to which the plaintiff is not a party. The goal of the test was to limit liability to contexts in which the “end and aim” of the transaction in issue was intended to benefit the interests of specifically identifiable third parties; in Biakanja, the “’end and aim’ of the transaction was to provide for the passing of Maroevich’s estate to plaintiff…Defendant must have been aware from the terms of the will itself that, if faulty solemnization caused the will to be invalid, plaintiff would suffer the very loss which occurred. As Maroevich died without revoking his will, plaintiff, but for defendant’s negligence, would have received all of the Maroevich estate, and the fact that she received only one-eighth of the estate was directly caused by defendant’s conduct.” Id. at 650-651 (citation omitted).

This instant case, however, does not involve any third-party beneficiary allegations. Furthermore, “there is no principled way to distinguish the process of applying for an original loan from the process of applying for a loan modification; both involve activities clearly within the conventional role of mere lenders of money.” Griffin, supra, 2015 WL 10059081, *14.

Defendants’ motion for judgment on the pleadings is granted as to the fifth cause of action.

SIXTH CAUSE OF ACTION (i.e., VIOLATION OF B&P CODE § 17200):

Plaintiff’s Violation of B&P Code § 17200 cause of action fails. Plaintiff alleges that SPS and Wilmington violated Section 17200 by “negligently ma[king] false representations,” “unlawfully initiat[ing] foreclosure,” “unfairly breach[ing] the implied covenant of good faith and fair dealing” and by otherwise “violat[ing] the Homeowner Bill of Rights.” (Complaint, ¶¶ 80-82 and 85).

Plaintiff, however, cannot show any compensable injury in fact to demonstrate standing to recover under Business & Professions Code § 17200. “A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition. (§ 17204; Buckland [v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798] at p. 817).” Peterson v. Celico Partnership (2008) 164 Cal.App.4th 1583, 1590. The causation requirement of UCL is not met if a plaintiff would have suffered “the same harm whether or not a defendant complied with the law.” Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1099. Plaintiff alleges that he “lost money as late penalties and legal fees have been accrued as he has striven to meet the terms of the loan contract.” (Id., ¶ 86). However, the complaint is devoid of sufficient facts to show a causal relationship between these purported damages and defendants’ allegedly unfair business practices. In any event, it would appear that plaintiff would have suffered this same harm irrespective of defendants’ actions, as his loan was in default.

Also, the viability of an unfair competition law cause of action stands or falls with plaintiff’s other causes of action, which are insufficiently pled, for the reasons set forth above. See Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 178.

Defendants’ motion for judgment on the pleadings is granted as to the sixth cause of action.

The court will hear from counsel for plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.