if you have saved time for rebuttal if you haven't checked in either way please let us know as you start your argument because it helps us to keep track you make all of us he's number sixteen honors the issues presented to this court can be broken down into two different sections number one the claim for attorneys fees interest and costs number two was sale sees a commercial law corporation security interest preserved at the reversal of the separate judgment removing those security interests this is the second pill before this court the first appeal dealt with a motion summary judgment that was granted based upon the claim that there was no written contract that was acquired under the statute for the services rendered at that time we had argued and they and the panel agreed decision was rendered that for trade services there was not the recurrent for written contrary at the time one of the issues that well one of the factors that rose at the time of the first appeal was the national policy of the f d i c and that policy included for their regional offices when do you pursue a written contract and the requirements of a written contract specifically is here a written contract are there references in the bank records and in the minutes of that policy they gave an example of an attorney who had performed a submission of a significant amount of work for a client there was not a written contract and the national policy the washing off the state is that in that case you are to proceed without looking for or requiring that there's a written contract for more or less proceed on the facts and if if you feel that the written contract is important then you're required to get or receive approval from the national office that that was that's your contention that's how you plan to proceed in this matter a written contract w sought litigation was per track to do over a significant period of time for this written contract in their written contract actually they like that written contract was the basis of the seventy judgment in the district court s original office is never explained why it decided to deviate from the national policy or explain or show that it actually received the approval to deviate and to proceed looking for this written contract on the issues of attorney's fees interest in cos i look at costs are presented to the court the issue of cost as much nothing more than a matter of mathematical has been brought up in the district court number one is the f d a i see as a receiver a governmental agency and we  not only president but i think that the language they said in whatever capacity if the i c is a governmental agency the second issue and one of the issues raised is number two is whether federal deposit insurance act specifically under section eighteen nineteen the sue and be sued provision under the equal access to justice act there are two different provisions that have to be addressed if you're if you're trying to claim attorney's fees under a provision under twenty four twelve b it requires  that in most situations that the american rule has to apply that each party is responsible for their own attorney's fees i present it and in our brief that we feel that there is an exception and we point out that exception for bad faith again the base of argument is that base bad faith was exercised in the power of the regional office because a regional office deviated from its national policy didn't ask for the permission and if if that deviation had not of taken place the lawsuit that was file there was proof that work had been done there wasn't a requirement for a for a written sand there's not a written contract requirement for trade services provided to a bank that was part of a but that that's forgetting the substance of your claim not forgetting the attorney's fees and under secondly if we look at the claim that was being made the claim was was a work of a before and under the claim those fall in the court under and stated account became sta it started as an open account the only claim that you could have made is that there were no services provided the amount was said unless you follow connor affidavit in that was that was a file and so under b yes i'm saying that as long as that as long as we could show bad faith and we're saying that the deviation that only mr kerman of bad faith under the but also it should not provide the substantial fees against a receivership the owner if we go back and look at eight hundred twenty one and the provision there and what it applies to and actually applies unsecured creditors and as i pointed out are really two issues and before this court number one is was the original claim secured unsecured and we argue that at all times it was a secure claim if it was a secure claim those provisions that were cited by creditor you look to the collateral and even the lower court at the time before we were going to trial them the district court in this show cause order that was dated march seventh two thousand and sixteen that's sort of tangled because the original issue was based upon attorney's fees interest and costs we learned later that there's hourly been made that well you didn't pursue a stay or you lost your security interests and the argument in our brief is said no this case was reverse and so at at this time we feel that we've made enough proof to show  they have placed that order duncan stevens on behalf of the federal deposit insurance corporation as receiver for home federal savings bank this record correctly tonight commercial law corporation attorneys fear ward under the equal access to justice act because such an award was barred by statute and multiple statutory provisions and any right even if not part barred by statute they were was not warranted on on the merits on the equal access to justice act because that's yes he acted in good faith and his position was substantially justified and so is the distinction that he requires your adversary to show no substantial justification and it's be that would require them to show bad faith that's right we agree with that without assessment that's correct understanding of the of the showing we don't think either showing has been made here let me start if i may with the statutory bars and at the top of the priority scheme is administrative expenses of the receivership and then deposit insurance claims and cetera down down through the bottom which is unsecured creditors and as as my colleague indicated the principle is that no received an additional payment on its claim from the receivership assets and other unsecured creditors didn't get a special payment it would be preferential would be special treatment so it's well understood that this that few words are not permissible for unsecured creditors now c l c argues that it was a secured creditor but it was not for several reasons first there was never a valid security agreement between commercial corp and the bank that purported security agreements were executed and the forensic exam of the c e o sees data showed this were executed after the bank failed by someone who had no power to bind the bank at that time because the bank didn't exist yet yes he had taken over furthermore the purported sic the purported liens securing this and these agreements were not recorded until after the bank failed and the f b i see it when it was appointed as are secret becomes the senior l missing the one part of this so they they have some type of judgment receivers that if we get something that says that they were entitled two hundred seventy six thousand dollars or so in legal fees now the good bit of their brief seems to be arguing or complaining about the status or how much of that hundred seventy six thousand they would get your brief focuses strictly on the attorney's fees aspect where do they stand with respect to the hundred seventy six thousand is that still tied up below or did they get a pro as it in fact there were there were not are not enough assets and in this receivership to make any payments to unsecured creditors so they hold a receivership certificate that would entitle them to payment if assets materialized and they were and and they were and their assets at that level of the waterfall but as it stands there are no assets and the f t c can't make legally can't make payments of of then what is legitimately before us is it only the attorneys fees or is it also before us whether they are a security or and secured creditor with respect to where they stand in what you call the waterfall what's before the court is whether they're entitled to attorneys fees for the work done during the litigation now their status as a secured creditor affects this eight hundred twenty one i two issue and if the court to believe that they were a secured creditor that would that would set aside our defense based on one hundred twenty one i two we still have other in our in our view we still have other reasons why the district court did not occur in not making the of the attorneys fear ward so it's in terms of where they stand in the distribution is is that something that we should or must rule on and say yes to their own security so there's no money for them or their security or is that really not part of the appeal that that's kind of where and well it's part of the appeal because it bears on our eight hundred twenty one i two argument it's not in a it's not in our view is strictly necessary for the court to reach that issue because the court can  section eight hundred twenty five the three bars fines and penalties against the wrist and if you have the i c as receiver fear ward is a penalty in each of the award is intended to punish the government for taking a position that was in bad faith or not substantially justified we obviously are believe that we did act in good faith that we were substantially justified but the point of ija is to deter the government from taking those types of positions so section eight hundred twenty five b three bars such an award now c l c has argued that that only applies to taxes but that's not true sixty nine have applied this about clyde this provision to the late payment of severance pay penalties for a late payment of severance pay in the second circuit apply this apply this outside the tax context the national loan investors be town of orange that's two of four f thirty four of seven where the issue is sewer charges so this is not limited to taxes and the money the court in monterey at even noted that the heading for section eight hundred twenty five b three when it was first in acted red exemptions from the that the that the f t c and deviated from its national policy it did not the national policy regarding the assertion of the dench doctrine and the statutes reflecting the bench doctrine permitted the f t c to assert the doctrine there were real questions about whether these these services were in fact received by the by the bank before it failed the invoices that purported to reflect the services that same forensic examination showed we're back to they were created after the bank failed that in itself and created a real question about whether the services were rendered and furthermore celcius argued that the washington office didn't approve the assertion of the dense doctrine and statutes reflecting the doctrine of the washington office did approve there's nothing in the record indicating that it didn't and the bare fact that the washington office appeared before this court on the prior appeal and asserted the dench auction show that the washington office was fully on board here so there was no deviation from any national policy court did not abused its discretion its broad discretion finding the f t s these positions statute justified you have to yes he had multiple of the multiple substantially justified legal and factual defenses the first obviously is the in the statutes reflecting that doctrine where the f d i c argued that the lack of a written agreement made made that any purported agreement for unpaid legal bills on enforceable now this court obviously disagreed and we understand that but this court's prior opinion made it very clear that it was a very close question that had never been previously addressed by this court if yes he had other defenses as well as of as have alluded to it was not clear that the that the services had in that hadn't in fact been rendered the invoices purporting to reflect those services were backed it and furthermore there was an agreement between the bank and unwritten agreement between the bank and that and commercial law indicating that any billing for any attorney's fees would be deferred until the bank's capital ratio improved or the bank's capital ratio didn't improve and continued to deteriorate from the time of that agreement until the bank failed so that that indicated that there was a condition proceed in to the banks liability for any legal fees and that condition proceeded never occurred it never went into effect so that and that in independently was that it was a vow they could offense that the f t c had you have to see was substantially defendant it was it was in the nature of settlement because it was a full payment on the claim there was nothing more for commercial law to receive and indeed the district court render judgment based on the payment of that receivership certificate or a distinction between payment and satisfaction because they never got any money they got a receiver certificate satisfaction of that claim as i understand this record that's right they received they've got a receivership certificate which is legally all they could receive as an unsecured creditor right but that payment ordinarily would indicate that you actually got the money or at least some of it but here entered judgment based on the satisfaction judgment saying that and that judgment established that this was an that because this had been satisfied now by receivership certificate that this is an unsecured creditor was that judgment ever appealed not the judgment that judgment was not appealed the only appeal entered was from the denial of attorney's fees under the ija so there was no appeal from the from the entry of judgment so why isn't this question of secured versus unsecured creditor just gone believe we agree with you that the question of whether there was a valid satisfaction of judgment that is not that is gone that is not before the court the there the question of whether the commercial was a secured credit or bears on the eight hundred twenty one i wanted to go back and address because there were a lot of arguments that were made regarding factors or facts in which they were never in the facts presented or any facts proven when this matter came before the district court the district or it came before the district court because if the i c wanted and their claim was we issued a certificate we want you to dismiss the complaint this is about three days before trial c had the opportunity to go to trial and to prove these items that they say they did not go to trial because the forensic evidence that they had referred to was excluded by the court there was no proof of any backdating they could not use any of that evidence that was an argument that was made but that was never presented to the court in this matter they said that there was a question for the any worker had been performed converting this mutual bank to a stock bank and so and i took part in all those discussions and i represented the bank in all of them so when they're saying that there was a good faith argument they could be made that there was no evidence at work of been perform have been representing bank for twenty something years my name was all over the place everybody there knew me all the offices knew me all the directors and the members of the board all testified that it perform the work there's also a question  there's never appealed to any creditors i don't know how many of the creditors other than myself it fall the client so there was never anything paid out when this question was addressed below the f d a i see what is a pot how many  you have that there's no evidence is ever presented they said oh go look at the website there was a certain amount pledged by f d a i see to cover failure but this bank has been operating now for at say to another ten years there's never been a problem with that  the there was an argument made that the lanes were backdated forensic evidence there was no forensic evidence of that any evidence that they attempted to enter duce for that was excluded by the district court opportunity when this case was remanded although i wouldn't have been made today could have been made then and they chose not to they chose to try to get this matter dismissed the dischord judge would not dismiss and said no you're going to have to this matter came up when this appeal was pending and i saw what had been written so i rose i've i raise it in my brief and i said this is an issue because they are saying that it had been removed and basis