last we have course here special situations fund versus state marshall good morning roger smith please the court my name is matthew sturtz and i am here this morning on behalf of the appellate courts here special situations fund yours in this case there's been no levy either actual or constructive certifying that this connecticut supreme court since it's a matter of connecticut your honor i appreciate that and i think that certainly with the lack of precedence that's one of the criteria that you look to but i don't not true this view raise the complexity that you would normally see in a referral type matter but certainly if the matter were referred to connecticut we would expect the same result as we are pressing to the court today of the writ mirrors connecticut statute and it instructs the recipient in this case national resources that you are required quoting from the writ you are required to pay to the marshal the amount of a debt owed by you to the judgment that are provided if the debt owed by you is not yet payable payment shall be made to the marshal when the debt becomes due within four months in this instance your honor was an ongoing development project and so that the amount that we ultimately obtained in a turnover order then came before this court before is an amount that we were able to calculate was actually paid out during the four month period after service of the process and so what we were anticipating by serving the rich on the developer of the project was that any monies then do and paid out to our judgment debtor yet faster engineer framing systems would instead be turned over to us at standard way to enforce a contract and account data or in this case nat resources instead of paying my judgment debtor has to pay the money to your argument that because the money you get paid as a result of that noticed that was there or rather as a result of litigation that occupied again the next two years that no one was affected is that your argument yes that is our argument because the levee itself contemplates an attachment by the sheriff which of course creates a corresponding risk to that in this case the marshal excuse me thing which state you're in a chair so marshall's that's what that's why now your honor there's an additional fifteen percent if you have levied on assets that is paid over to  went to your client and then another two weeks the next chapter and your client the marshal would have done nothing more than serve that paper but then he would have been entitled to the fifteen percent agreed absolutely on make sure i understood your position you assert legal rights and control over that asset and in the instance of an actual construction you have course taken possession literal possession of the assets and so the marshal would have the assets th not going to leave his hands absent some poor court order in a constructive levy and i don't disagree with the district court you can have constructive leverage the classic example we see your errors is when you go post a notice of foreclosure on the home you haven't actually literally taken physical possession of that home but what you have done is you have given notice to the world and this particular asset this piece of real property in my example cannot be transferred conveyed a sign and sold to a third party because they're on notice that it has been posted in somebodies legal rights have been posted their exact same thing happens your honor is when you when you send the sheriff of the marshal to a business enterprise and they are to identify the personal property of their business enterprise so they may enter that enterprise and they may put their tags on furnishings computers other assets in the operation of that business there is a label literally affixed to that asset so that notices now given the marshal doesn't pull up with a moving van and fill it up with all of the stuff they label everything to put everybody on notice that the marshal is come forward the marshal has asserted his or her legal rights over that and everybody's on notice those are constructive that way the marshal ultimately can take the steps to turn those assets of the value of those assets over to the judgment writer none of that happens in this case the actual money that is due is paid out the national resources approximately two point one million dollars and they pay it out to either engineer from systems or other creditors the engineer for a flaunted the marshal's order well they simply disregard i they didn't think they were bound by the command of the court and they've course were wrong but the money is now gone i have that all to mellie on behalf of course here through extensive discovery depositions written document production obtain the information indicating that you did refuse to have been obey this command and you're now going to pay twice that's what happens it's pursuant to the district court's turnover order that i ultimately obtain payment not the marshal himself it's once we notify him after this case concluded in this court we notified him the case is now concluded and we need your bill for services that he steps florence's zero on calculating it based on the money that corsair collect not on the monies he collected that's not what a a marshal's fee for service of a writ is intended to do because the marshal literally in the modest time it will take us to argue this to twenty minutes of discord is a lot of drove to this business establishment hand on a piece of paper  it was established by your answer judge reggie's question if he had done exactly the same thing and the next day or if five days later they had sent the check to you would you say well that's you wouldn't contest that he's entitled to it under those circumstances i would because that's clearly as i mean certainly certainly you wouldn't contest it if they paid the money to the marshal who then turned it over to you that's exactly right and if they if they simply eliminate the marshall and sent you the check directly you would concede that that was that that was constructively having having taken having see the marshal constructively seized even if he never had his hands on money like you parties end up getting together and decide to satisfy the judgment separate and apart from that you have a quotation you refer in your brief to this passage in corpus juris a condom that says we did go back to figure out what is the genesis of this entire distinction between just and ministry to feel if you will and when with this european title to what is in this case obviously an extraordinary amount  if it was taken and it's where it's way whatever the good might be of my life suggestions or maybe instances where you've taken the pound something that's not of like i understand yes but that's where it came from there was the risk that's why they're entitled to a greater freedom in this case you don't have that risk because ultimately it's not commercial fall it's national resources chose to ignore his red therefore making his exercise at that point that end fee but you don't have a levy here either actual or constructive therefore you have no risk on the marshals part which would support such an extraordinary amount of money for little really driving ten miles and serving some with a piece of paper for both legal reason to set forth and we think the statute recognizes this inequity and we ask that the district court the fifty percent provides it for the let me of an execution when the money is actually collected and paid over with the debt all reports of the debt is secured by the officer so am i to understand that you're saying that levy when the money is actually collected or the debt is secured means by the levy not not by something else and that's you're asking us to construe the language that way that's right and because the payments going to the good afternoon your owners neil moscow you're in moscow for the marshal i'll try to be very brief but i think some excellent points been raised during that colloquy and i just want to note a couple of things very quickly i have three points and then i'll answer any questions that  the bench may have first and most importantly the argument that we just heard that if the third party debtor had paid the judgment creditor directly but had done so without the need for the turnover order the levy would have been effective i believe is dispositive of the issue before this case that ignition by the appellant acknowledges that the levy us effective against the d that's the beginning and the end will let me the argument of your adversary's i understand it is that a levy occurs when the property is in the custody act constructed of the marshal or the sheriff and the proof of that here would be that they paid zero for within a short period of time the fact that people had to go into court and hire lawyers and conduct discovery and all of that suggests that there was no way that to let so help me out with why that's not a correct way to look at it sure because the essential finding of the district court and this court in affirming the district court's decision on the on the matter of turnover was that the service of process the execution was properly served and served and was effective against a third party debt or in this case your honor it's not because the controlling statute connecticut general statute fifty two three fifty six a four b specifically circumscribes the action an officer must take to perfect a levy on a third party de when the judgment debtors not a natural person and specifically your honor that statute provides that once the the marshal serves the process on the third party debt or any debt then do or do within four months needs to be paid to the marshal the fact that the statute by its very terms contemplates that the debt may not be doing that moment may become due in the future and ignores the notice i don't understand how the marshall has affected a life well as judge hall carefully set out when she went through both the legislative history and the the case law in connecticut connecticut recognizes that a levy is effective once if for purpose of the construct of levy is effective once it's publicly declared by the marshal and in here that's exactly what happened and also recognizes that the minimum for such x he'll be thirty dollars which is the service of process so that suggests that they contemplate that sometimes all that will happen is service of the process that's correct judge out what would that circumstance be and how would it differ from what happened here sure so for example we send a marshall out to do a bank execution and there's no money in the bank he still gets his statutory fee plus plus mileage thirty dollars plus mileage regardless of the fact that there was no money in the bank this situation is much more knowledge as to the situation in which a real estate broker finds a ready willing and able buyer contract is in place and the buyer defaults the seller enforces the sale has to hire attorneys does discovery goes to trial whatever it takes to enforce the sell the real estate broker still entitle to his commission regardless of the fact that all he did was produce the buyer he didn't have anything to do with the rest of the situation where the marshals yes acquired the property no the in this particular case under three fifty six a four b the marshal's responsibility is to serve the third party debtor with property owed to the judgment after that's the thing is there anything that is within the powers of your court that is something is there anything further that he was authorized by law permitted by law to do no judge will and that's thing else that he could do not to the third party your honor and that's exactly what judge paul found and there's there's no indication to the contrary moreover this is this is precisely what the stats tory scheme anticipates that that notice sign you when are you going to pay would that be illegal and his part it wouldn't be illegal but it's not required no i didn't ask you what was required i asked you what he could do are there any things that he was permitted by law to do to to effect to a two to effect to a the the the payment of the money other than serves the execution there's nothing under color of law that the marshal has authority to do now whether notice that he now secure amount of money when that how the data received that money was by hiring a lawyer going out because the levy didn't work well your honor the the marshal also undertook an extraordinary amount of risk by making the service he served a multi million dollar execution if he had done it incorrectly if he had not served a timely so such that the payment was made before he made service he was potentially liable for that and by its conduct yes your honor to the extent that he even negligently performed his duties he's liable in malpractise just as any other service professional service provider of their service profession that's correct  salt marsh look taney the property wrongfully not not anything in this case i ask your adversary why we should be in he seems to think we should construe that statute that provides for the fifteen percent which says for the levy of an execution when the money is actually collected and paid over the debt is secured by officer y that doesn't that whole clause doesn't mean when the money is collected or the debt is secured says you don't think when the money is actually collected or the debt or a portion is cured i don't book when you're entitled to the money no your honor as as the district court made clear and i think in a very well reasoned view of the language if you look at eighty two f it reads for the levy of an execution comma when the money is actually collected and paid over comma or or i'm i'm or the debt or a portion of the debt is secured by the officers i believe based on and my client believes based on the district court's finding and this  found that the trigger for the requirement that it be to be paid over was the effective service of the execution and that execution therefore secured the debt how do we know this it was paid twice if  effective and clear as to what this court should do if this court has any concern then certifying to the connecticut supreme court is always an appropriate remedy on an issue in which the state's highest court has not ruled whenever this