problem so so principally bam bam held that there are there are many damages because there was a valid judge so take for example i'm a collections attorney it's a valid judgment note no it would go back to the debtor and then they would i would get this far and then he'd have to hire an ethical attorney that follows the law and collects that money back it is totally improper for the client of mine to reap the benefits of my own walk will be ate the same thing goes with the marshall you have to remember about the mar he's not just a salaried civil servant that's carrying out his students he is making a profit just like an attorney who's a collection judgment or he gets paid a commission  you there was no way that that that marshall would have known that underlying judgment was about the attorney's did and therefore their life because they knew that what they did was wrong but there's no way for the marshal to have known it and therefore why should we pass liability than that and that was the rationale of bam bam but with the rational bam bam to wrong because here the marshal absolutely knew what he was doing was wrong he absolutely knew he was going outside the scope of his authority he was going out see the numerous territory territorial when it was new york city not the last point and that's not how it would happen because if that's the put the concept of offset and here what would happen is if we have to remember is the position i'm in doubt i'm in the position of future next senior secured lenders so it would go back to the receiver and then he would disperse it in order of preference to this unique whoever is right so the money to come back to the receiver everybody can put their claim at and guess where that money would go to it go to the senior secured creditor whom i am now representing my clients and not profit who has senior secured rights it is now being victimized because the marshal decided to violate the law my client obeid by the law and that direct your attention to the lines of case that we cited in it in our brief which is a southern district of new york and it's from nine hundred and ninety and  came came from you've now had the legislature in active disclosure last for m c a the f c c sued c m s yellowstone one of the defendants in this case the new york attorney general judgment just doesn't exist and that happened after the briefing and states that both of the f t c sued yellowstone that the new jersey attorney general that's public knowledge in and december of that the court appeals were wrong in our favor and that's why i don't think you need to certify it because i think it's such an easy question that i see my time's running out but there are so it's such an easy question it really does not need to be thanks and one of the two creditors that are involved in these appeals and the principles here are basic tort principles so respectfully i don't know that a referral to the court appeals or certified question to the court of appeals would be necessary in this instance because we are talking about the application of relatively basic tort principles which is they have an actionable tort you have to have some form of damages by it's important here to point out who the plaintiff is the plaintiff in this instance is future net who was the debtor and then we had a receiver come in and be appointed to step into the shoes of debtor and now we've had an assignment from the receiver to these two other investment creditors they stand in the shoes of future and this is not a case about their purported d independent damages the question is did future net suffer any damages as a result of the conduct that's been alleged because of an offset i mean that's basically all right well it actually the district court addressed it at some length in a very long footnote whether or not the doctrine of offset is even applicable in this instance and correctly found that it was not because there's no mutuality of debts here before in so what we have here is it's uncontested i think the council just was held on this a little bit uncontested that we have a valid judgement it's been litigated twice in state court the by the judgment execution device is at issue here and it's actually in some dispute they admitted in their statement undisputed facts of pages four hundred and twenty and four hundred and twenty one the record so now the question is was future net damaged even as a result of this allegedly improper collection activity and what we've just heard from council is no there there are not future net is not seen and dined here even if we play this all the way through the money would go back to the estate and then go out to other creditors the other creditors who are really now the accountants in this case their damages alleged damages are relevant and they had a means if they truly thought that they had priority to these funds they had a means to to go into new york state court and get a judgment that would vacate the execution of the levy that's the subject of this appeal and they could do that they challenged the judgments the validity of the judgments they lost twice and now they come to this court with tort theory that frankly has been addressed on all fours bam bam entertainment versus back not a case which is virtually indistinguishable from the case here there the marshall issued an execution levy on a bank in ohio instead of michigan but it was the same claims in that case that have been asserted here and the court of force you're not bound by that right i mean the whole reason we're talking at all about certification this because that's not binding on us we can follow it but it's not binding you're correct your honor and i guess that i but the court also found that a judgment creditor may have a cause of action for damages and a plan to separate quite a reaction the court did say that in that case and what i would point out is what they actually did was misapplied v the separate entity rule because they ignored the distinction in the koehler case from the new york court of appeals which said prejudgment attachment has territorial limitations however post judgment enforcement actions are not subject to those territorial limitations and they actually cite the national union case which was a pre attachment case so respectfully the ontario case that was just recently submitted to  and i would just conclude by pointing out that numerous courts including the th circuit have found that where the money is taken and used to pay off a lawful debt there are no damages to the  circuit has said that the d c circuit has said it and we cite some cases from the district courts in would be it could be damages correct if if there was some other theory of damages such as unnecessary mitigation or legal fees or something of that sort but i gather here that the only damages that are sought are coming from the fund from the from the judge or related to the judgment itself the only damages that have been alleged here your honor are actually with regard to other creditors who are not even parties to this lawsuit that's that's who the opponent the real pounds and interest are right now are those of the judgment creditors future net the debtor here won't see a dime even if there's was some form of restitution because it will go to other creditors thank you ok mr murray you've got three minutes critic capital merchant services i think the interesting line from the silver cup funding case the council cited really comes at the end of the decision if the process is vacated because of   that execution outlet be in demand and it cites two new york state appellate division cases from the last few decades or that proposition so to the extent that silver cup is a persuasive case it's persuasive in the sense that they haven't done what they're supposed to do they have not filed a motion to vacate the execution and in fact for three years now we've been saying that that was their requirement and for three years they've chosen not to do that the the  major factor is that as a pretty a condition precedent they have been satisfied that they haven't got to the point i think the other major facts in this case are pretty straight forward the debtor authorized comerica bank to honor an execution levy no matter where it was served it's in the record it's a joint appendix seventy nine section three four they authorized to accept service anywhere this isn't a case where service was necessarily improper they mean respectfully your honor no the marshal has nothing to do with my case my case was served sheriff and properly served by a sheriff the only question was whether that location was a proper service location and to which they consented specifically now parties and litigants are allowed to consent to service all the time in fact they do routinely except serviced by alternative methods and you might be in a different position than  am in the sense and mr haskins brief cited the earth said this pretty outright there is no question that my execution and levy are facially valid is only introduction as to the method of service and jurisdiction which is specifically the thing that says that you must st seek to vacate the execution before you can even attempt to do part of that is fairly straightforward or if they had made a motion under c p l are fifty to forty the trial court in new york could have crafted a remedy that would have given them restitution if it thought that that was appropriate they haven't done that they haven't done anything to this effect had they done so they might have said well you have no claim for tort damages because you have no injury after we direct that money to be returned perhaps we'll never really know here because they haven't challenge the execution properly and because the judgment itself is that how it and the execution is valid they haven't challenged any of this appropriately so they are in a position in that they have no way to proceed here i think that the issue is they're trying to expand tort liability beyond that which has never been contemplated by any court and as a straightforward matter two thirty nine dollars it could have made a challenge no one has ever raised an objection properly at any point in time they shouldn't be allowed to see tort damages is and it wasn't that they're here seeking just the money to be returned they're also asking  against my client and that's simply not appropriate they're asking for injured damages is and a recovery that are simply not things that they can recover and on that basis i think that they have the trial court got it absolutely right the trial co and it could have simply decided the case on their consent did not and interestingly enough the balances our case the council has cited it deals with the f t c under the f t c p a they didn't need to show damages not case because there was a statutory clinton giving them a one thousand dollars damages is this isn't a consumer case so there is no ability to proceed without a without a an actual tort mage and to the extent that the balances are case cites anything it cites mccarthy v walker and mccarthy v a trial court the eastern district of new york specifically found that no issue with service a process in a case because once again in that case a judgment debtor had consented to its bank to honor a subpoena served or an execution served however it was served and wherever would serve be served there simply no injury and in fact there's really no wrong here everyone did what they and my colleagues have have highlighted a lot of the core principles here and i think they've been articulated a little bit from the bench to the core being coming down to the proposition of if there's if for any claim tort claim or otherwise the basic want to remind the court that key basis of the reasoning in this is just a quote where the court says there's simply no factual basis to find the marshal knew or should have known the debt owed by the judgment debtor and the plaintiff is invalid and very importantly and that's a whole marshals  would be required to evaluate the validity of a judgment would be to create an expense of an unmanageable burden not intended or otherwise codified by the legislature and not one recognized over one hundred and seventy years of established jurisprudence beyond that the key policy at stake here is that if in fact eleven this court or any other court should hold its enough to show that the marshal didn't do something that was procedurally appropriate and then guess what they're saddled with the debt now in this case you're talking about one hundred and twenty seven thousand dollars in many cases in new york as we all know you're talking about multimillions of dollars that holding will apply no matter no matter what the size of the case the marshal goes beyond the bounds of the city no damages to the pla would which my colleagues have already talked about and i'll just echo they see and in the shoes of the debtor and the receiver representing the other creditor entities had a separate remedy which is already there so we're dealing with a separate complaint separate cause of action that was never brought in not in front of us here the policy concept though is that if this court rules as the as according to the relief in the complaint sought that a marshal can be liable to take on the judgment debtors entire debt by virtue of a procedural irregularity i cannot think of a single marshall in new york city or anywhere else that we willing to have have their office put themselves on the line in the name of that debt and then just a couple of  other pieces i just want to make sure that we've covered actually i think that's really the primary principle it's really boils down to and i'll just sort of finish it with one point that counsel me which is there are there are a legend damages is that the money was in the account and then it wasn't but as was pointed out from the bench that would be the case no matter what because if the money comes back it just goes to a different creditor and what was clearly articulated from appellant is that really what's at interest here is this is  by someone else in the debtor's clothing that this is really an attempt to pull back the money so that another creditor could get a hold of it but even if that happens there is no benefit to the actual plaintiff here which goes to one last point about damages it was asked whether or not there could be collateral sheriff complied with his jurisdictional territory this rule would not curt's hell eight marshall collecting a judgment what it would do it was  it would ensure that the marshal complies with the law the sheriff in this case served it within its jurisdictional territory that's why the chair wasn't sued he didn't do anything that was knowingly there there are if you look at the cases we cite it there are you can do that if you want to collect against their bought so if you want to collect against their bond you do it that way and that for different claims where authority he did it outside of his jurisdiction and when he act outside your jurisdiction is unknowable period it could be like if you were dorsal it would allow marshall be a go to walk down and knock on the doors in florida and california show his bat say pain you're going to jail take that money and collect it and say listen ah you go to judgment it's valid i can do it there's nothing you can would be satisfied that the judgment about that was if say it was five five hundred thousand dollars and they got five hundred thousand dollars back now there would be the judgment would be left for five hundred thousand dollars because that hasn't been satisfied and then the lawyer bill would go to the judgment creditor and say listen this money had to be turned back to no you pay your reimburse me and then the judgment creditor would have to go and actually collect upon it really that's exactly what would happen and what would happen in innocent senior secured credit they've got to come in and attack the judgment if they were they have to come in and do do all this what the rule that is under bam bam would incur would encourage more litigation by