behalf of the nation star mortgage l c before i start i want to just correct one small misstatement that was in our brief i think recognizes this is she's filed a whole new complaint in the southern district after the completion of briefing on this case that raises pretty much the same issues broadly speaking  that she filed a notice of appeal but it's not clear that she didn't have intent to continue proceedings will a court so are we reviewing the final decision jeff i think you are reviewing a final decision she could have as you say amended her complaint in this particular case she did not rather she filed a notice of appeal and then after the briefing in this appeal was complete she filed a new complaint in the southern district  it is factually very similar although she had some other allegations in the text of that concerning the judges who sit on the state supreme court in westchester county and i think also concerning to ask you about the book or film in question which she mentions in reply brief she says that the state proceedings hadn't ended because the foreclosure sale hadn't been finalized and that she could still appeal the foreclosure sale in state court so is it your position that the state proceedings had ended by the time she fell but in this case yes it is i think she's incorrect as a procedural matter about how the  the actual foreclosure sale plays in with the judgment of foreclosure and sale the judgment of foreclosure and sale and that's entered by the state supreme court is the final act of the foreclosure litigation and it besides all the issues that are raised in the case and is a judgment from which the appellant could have appealed to the nd department the actual foreclosure sale itself is not conducted by the court it's conducted by the sheriff and the sale itself is not something that would be subject to appeal there's not a court order entering the sale or anything like that it's merely a referee's deed would be recorded so that if she had appealed to the judgment of foreclosure and sale the of the proceedings in the trial court would not have ended in til the nd department appeal than your position is they have if there is a direct appeal is longer there is a part there is at least a possibility that the nd department could reverse the judgment of foreclosure and say i want to send it back to the trial court which point the state proceedings would be ongoing if there is not an appeal from the judgment of foreclosure and sale and appeal time for that of appeal to be taken as long as and past the judgment of foreclosure and sale is the last thing that can happen in the in the state court proceeding all right anything else so simply you know i'm not going to go through the record feldman discussion there we are not challenging judge charisse is decision that three of those of the nine counts were claim was not explicitly raised as a as a counter claim or an affirmative defense but that f t c p a claim was based entirely on actions which preceded the filing of the foreclosure complaint and it was therefore a claim which could have been and should have been raised in the state court proceeding and because it was because it could have been raised in a proceeding d and was not