nominal issues a case of st impression dealing with one hundred and sixty year old statutory law in new york state dealing with the usury laws you realize with the same issue was raised to another  of what you are arguing today well if your honour's are aware that we have renewed our motion for certification of these questions to the new york court of appeals because in this case the criminal usury statute represents a fundamental public policy in new york state and based on the issues that are raised on this and i was on the earlier panel in the same argument was made yes but the panel the motion filed denied it well as the decisions of some of the appellate division courts in new york that the criminal statute cannot be waived and the reason why it cannot be waived unlike civil usury civil usury is a personal right that you can be waived by an individual but when a statute is created for the protection and betterment of society especially the criminal usury statue in new york that cannot be waived and i weighed in terms of you can't in a contract waive the statute a lot about in the context of a lawsuit where i mean can you go throughout an entire litigation not raise that the fans and then at the very end rate with the fans but you know that's not what on you tried to raise and the district court said that you when you're on the defensive can lose it was preserved in the answer it was raised as an affirmative defense we were not counsel during the st summary judgment motion had i been absolutely would have raised that issue on which way did that cut which way to set cut well if you've been cancelled you absolutely would have raised the issue and the reason you absolutely would have raised the issue is because otherwise you would be in danger it well i don't necessarily agree with that your honor there are a series of cases at the state court level that for instance in lower equities the there was a pleading an answer a motion a summary judgment it wasn't raised at all and that in that case seven years later a new attorney makes an application to vacate the motion for summary judgment and the sole reason is because the defendant years all of this is really measured in terms of the amount of input and work that the busy judges have to give to decide the case that you have set before them and if you don't  if if you don't raise an issue that they can address i completely understand your honest position however the court is required to conduct a balancing act at this point big now are we let's assume for the moment that it could have been raised before and was not this is not a jurisdictional question so if we wanted to since it's a straight legal issue we could take it up even though you didn't grace it this isn't with you that is waiver that's correct of calibrating in fact the lower court in our decision and one instance different one it's essentially this that if the district court in making its decision as to whether there was waiver or not was influenced in a determinate of way by its finding that there was no usury defense then we don't know what the district court would have done on waiver if it had had a different view of the usu issue deals with new york's fundamental public policy and it's based on statute i implore the court to consider certifying the question to new york state court of appeals let the new york court of appeals come down on interpret in their statutes and whether or not a get to the new york or the appeals or question is is this the case to do it and where is this not this is absolutely the case to do it in because not only do we have that threshold question of whether or not a defendant in a civil panel in a couple of weeks yes in fact your honor i i'm on another one that's soon to be scheduled as well but and the history is so rich in new york on the criminal usury statute long before you gentlemen were born and looking at the at the case below there was no examination of the trans asked action document in this this is developed in the brief that the court relied on the case which was just dicta and almost every southern district court judge has relied on that dicta to say as a matter of law a convertible note is not subject to realize that district judges have been good morning your honor is mayfield's the court jeffrey passed on behalf of the apple e booth's the d l c the defendant would have the court believe this is a very unique and very important case that's going to decide dozens and dozens of cases that are pending the circuit the fact is the trying to do is obtain back to absolution from this court for the procedural errors to address one point that the plane made in their argument what they're saying is that the defense of criminal can never ever be weighed in essence what they're arguing is they can come they can a judgment can be entered they can come back five years ten years twenty years later and say usury and void the judgment because  i believe that she did i think it's effectively said that there is the result waiver and the law of the case and then she said but even if it's not let's go through the analysis and you're wrong anyhow so to answer a question that was asked earlier to opposing counsel it's possible that at some point this court will certify these questions to the court of appeals but this is not the case this is a case where they lost it on procedure to overturn that it would basically you have to find that to overturn either the law of the case or the abuse of this or the i'm sorry or the st motion deciding the motion on the merits and your predecessor never raised the argument then apparently you come into the case and you raise the argument why is it not within her discretion to say it's been one and all that time working on that opinion and now you're coming back for a nd bite at the apple and i have the most respect for judge soprani i feel she's a well reasoned judgment of her decisions however not the hartley versus eagle insurance case from the new york court of appeals she was required to undergo a specific robust analysis as to every term within the four corners of the document to determine whether or not this passes muster whether or not this document is legal she said that there was a legal contract my client never raised it but she never did the analysis so when she did her alternate holding which is reviewable by this court in the nd summary judgment motion she she basically when through the elements only so far as to cite other cases that never conducted this analysis so we would take the position one of two things are either you need to re manned so we have an evidentiary hearing so we can look at the details of the contract to make sure that this contract which charges more than twenty five percent anyway you dice of the slice s and specifically says it's unconditionally and absolutely repayable making it alone or certified his questions the new york court of appeals for guidance and then we could come back and you have fifty cases b form with the law now the good thing about usury is usury is determined from the four corners of the document and the brave or the waiver question in this context that is whether it's way in a circumstance of the litigation isn't that a federal question a procedural question well i believe that on the c p l are there's a statute that says you can raise an affirmative defense any time and you're in federal court isn't that isn't it the waiver question whether it is wave as an affirmative whether the district court i decided differently if it for the merits of the usury lower different from what it was there are situations in which you send it back to a district court to say do you want it but it is a federal question that isn't is a question that i meant in the context where you still have new york's public policy to consider to have or see the criminal usury statute versus the federal procedural law that says you waive the