go just go have a good morning your honor is paul grossman for the appellant at issue one the subpoena is whether a plaintiff in a new york city water lien foreclosure action is permitted to demand and collect legal expenses by representing that they are due in a pay off quote or invoice before judgment where the governing fee shifting statute does not permit the recovery until after a judgment or request for lien to a private collection agency the collection agency notifies individuals us these are the lanes are but our expenses are next one hundred dollars and if you want a summary right now and not go to court  other lien holders who are junior to them but that has but my question was do they prevent you from entering into someone in which the settlement price is something of the lien amount plus a sum of money and the answer to that is no a prevent a settlement however in new york city taxpayer new york city water and sewer user has an absolute right a statutory right and an equitable right to pay the soffit any time by paying the amounts do so by represent excuse me i do that my client asked for a payoff quote and in the pay off quote which is an invoice which is what they always tend to pay off the payoff quote the payoff quote says under amount due it says three thousand six hundred dollars in legal expenses after now that that is false you wouldn't send a five foreclosures then you would you would you would what you'll do is drive up the cost of these proceedings and in your interpretation that they'll all go to foreclosure they won't sell unless you pay the full song right up  front not wait a second that's the one way to do it if your client had just walked in and handed in the full sum of money there is an argument i suppose you could make that he's paid off elaine but now they are on the lane and they've decided that there's a cost associated with their ownership of only but he has a right a statutory right at any point before a foreclosure judgment to say and this is what he did how much to do what he did he entered into an agreement to pay a sum of money and then several installments twelve i think they were and then he did and then actually he breached that he didn't do that he didn't make that payment he didn't make the payments he didn't walk in and tender the full some money he walked in and entered into an agreement to trusts are allowed to issue pay off quotes because this is their policy which say that legal fees are due in no in their hundreds and hundreds of cases which say because all fee and expense shifting fraud why don't you tell me why this isn't precluded by the nor panicked if i could just take one second with you if you don't want to tell me about the nor pentagon doctor don't tell me about i apps and i thank you i don't think you and i will agree on what is fraud ok with regard to the fraud thirty seconds if you look at the veatch if you look at shula all of the cases under the f t c p s a which deal with the question of whether a representation is mis misleading i understand new york time in new york cards i've written on fraud on occasion back when i was a state court judge so so your whole premis whether you get into the federal statutes whether it's fraud or your light is on the not talking about nor planning nor pennington your honor to the extent that a party is precluded from raising a claim based on a false representation regarding legal fees or expenses that erode then it would not only preclude actions under this statute but basically preclude any actions under any fee or expend shifting statute in the united states court  regulations when they are used as part of conduct which violates a valid statute and section three three five and three three two here are valid statutes in fact federal courts have recognize that the allocation of attorney's fees and expenses in litigation is for removed from the first amendment right to petition and you can look at the premier electrical case in the seventh circuit where the court said that any other result other then allowing claims based on the improper allocation of fees and expenses would mean that fee shifting statutes themselves are unconstitutional and he made some the case here we're dealing with the situation it is not a settlement because the new york city taxpayer has the absolute right to pay these amounts off he did not owe these amounts at the time that he asked for a payoff quote what the seventh circuit said was the proposition that the first amendment prohibits riva has anything to say about fish if being statutes in litigation seems too far fetched to require extended analysis  well considered forty five page opinion comprehensively considering and rejecting each of plaintiff's claims he rejected each individual cause of action for no fewer than three separate reasons and rejected plaintiff's farfetched rico claim for no fewer than seven separate reasons given the number of issues in this case and the amount of time allotted i plan to focus my remarks today on two threshold issues on it's the same two issues that i'm here out of or just discussing with mr gro an first the question the threshold question of does new york law the new york administrative code allow the collection of attorneys fees and costs prior to a final judgment that's the first issue than the second issue is the application of the newer pennington doctrine to this case of course if your honour's have questions about any other issues i'd be happy to answer mine absolutely under the nor pennington doctrine as it was clarified by the we believe that new york law entirely supports the proposition that it's proper and appropriate to collect attorneys fees and costs as part of a prejudgment resolution of a tax lien for closure but even if your honor disagree with that as a question of new york law the position is certainly not objective we baseless so we know it's not objective basis no court has ever agreed with mr brueggemann straight interpretation of the by contrast the interpretation of the statute on which apple is rely has been adopted and indorsed by the new york city corporation council which is on the briefs with us and which has responsibility for on interpret ing and implementing interpretation of the statute under which it's entirely proper and appropriate to seek attorneys fees and costs prior to entry of a final judgment of foreclosure so everyone who's ever looked at the statute including two federal judges and the new york corporation counsel agree that apple has have interpreted the statute correctly even if your honour's disagreed with that proposition those facts i would submit conclusively established that apple lease interpretation of  statute was not objectively baseless therefore the ch'an exception to nor pennington does not apply and then the only other possible question on the newer parenting doctrine is do we demand letters sent by apple e s and in particular you just expand and tower do those letters constitute litigation activities within the meaning of nor pennington i submit that under this court's decision in the primetime twenty four case those communications flow within the heartland of litigation communications in the prime time case this court recognized that while not necessarily petitioning activity certain activities incident to litigation fall within the protections of nor pennington and in particular this court identified demand letters and settlement communication that sends a payoff quote along with a settlement agreement that's obviously it's repaired magically a settlement communication the next communication nearly informed plaintiff that he was in breach of that settlement agreement then the next communication again informed him that he was in breach and essentially said you know it's this is the equivalent of a threat letter that was recognized as subject in our pennington so that that letter essential he said you've continued to breach your agreement therefore we're going to reinstitute foreclosure proceedings against you so all the communications and you know that the others are in a similar vein so all of the communications here are precisely the sort of settlement communications or  of it was the term used i believe by the ninth circuit and that sosa decision which we think is is on point in a number of respects here but in particular along with this court's decision in prime time york administrative code you know first it's clear that the attorneys for the provisions of the administrative code do not require a final judgment you know they say attorneys fees shall be awarded it's entitled to costs and you know it makes no sense to say and this is what judge suite held that a party is not entitled to obtain in settlement of a foreclosure action what they would be entitled to obtain at the conclusion of final judgment any other result would you know as your honor pointed out lead to the result where there is no choice but for taxing for closure plaintiffs to see every last lawsuit through to final judgment to get what they're entitled to mr is true that holds the trust the trust is a creation of new york law ok so they still remain in us as the property of the municipality i think they're not the property of the municipality their property that their properties o which that check would be properly addressed but more important here is you know once foreclosure litigation is commenced how much how big does the check have to be in order to get your lien released and this is what i want to touch on  insisted repeatedly that there's a right whether it's the sort of equitable right under common law or understand shoot for a tax lien for closure plaintiff to merely pay the principal balance in interest not pay attorney's fees and costs and get out of his lien that is not what the statutes say that's not what new york law says and i would refer your honour's to harvey against muhney one sixty eight eighty one six nine on the question of equitable redemption in new york you have to pay attorney's fees you first regarding your question under section three three two it is not our position that after a foreclosure has been commenced a  taxpayer can get out of paying attorney's fees the statute says attorney's fees the question is whether the amounts are due before the judgment and section three three two says explicitly that once you pay off the amounts that are due as of that point the trusts are required to discharge the lien and dismiss the foreclosure with regard to the question of  petition clause the court below relied on sosa and prime time actually prime time actually said that the rejection of the settlement offer in that case did constitute a violation and actually reversed the rejection and the determination of the lower court that it constituted protected partitioning activity under nor pennington this court said that such an agreement related to settlement would absent litigation violate the sherman act and cannot be immunised by you get existence of a common law suit in the same respect the sosa case also said that first amendment rights are not immunized when they are used it's an integrity part of conduct which violates a valid statute and dealt and looked at each of the representations while your honor you spoke about  question of weeks ago and whether rico is exempt there are no categorical exemptions and if in fact rico actions were exempt where they dealt with litigation activity then you wouldn't have this court's case in turkish which is twenty seven f third twenty seven twenty eight in which this court reversed dismissal or rico claim finding th misrepresentations in a settlement agreement terminating prior litigation constitutes a predator a predicate act under rico or united states versus aizen which dealt with perjury or psychs vs mel harris