there was some penalty in interest are we talking here about thirty thousand dollars plus or minus plus thirty thousand plus and what is your client's current claim for relief or curb playfully we're asking this court to  to make a determination as to the priority of the liens and i've as i've ordered in my mostly my my reply brief that under twenty four chan acquired title action there's no definition of what acquired title action is  but there are many court cases including ninth circuit talk about quite title action will determine that the the priority leans to competing liens and that's what we're asking for is for determination  purchased in my client had priority over the i r s tax lien that we were we were forced to pay and i understand that's that's the legal issue you'd like us to decide i think the question though is what is the relief that your client is seeking that's and that's a different question because if the lien has been extinguished because it's been paid off we can't decide hypothetical questions we can't do that and so we need to make sure that there actually is a case or controversy still  live in this case and you indicated in response just christiansen's question that your client is not seeking monetary relief so what is the relief you're seeking well and let me follow up with judge owens question so we've got this fully fr i guess what i'm confused by and i want your help on this is that if the lien has been extinct the i r s lien has been paid off if it doesn't exist anymore then why isn't this just an advisory question you're asking us to answer in this case if it's not there anymore well i think if the court makes a determination i feel very strongly about this if this court makes a determination that the this record erred in its ruling  fit in this case at all none of those tax refund policies fit because here it wasn't the taxpayer that paid off the lien it was a it was a third party that had purchased the property that had been cumber by the ira saline that was forced to pay off that lien and orders or order to sell the property and i hope owner you know just the general good public policy litigation takes a long time and when you have an i r s lien stuck in the middle of a piece of property it's natural that at some point that button could be refinanced which you got paid off that's correct if if if we were to grant the legal relief that you're requesting would your client be entitled to attorney's fees i don't know the answer that question your honor client's own pocket and while the litigation was pending so we're hopeful to continue on with this action and have a court declaration as to the priority issue for all the reasons we o and i know i know you're referencing the language that you asked but the the it's a clear relief and count to right and i think i think why i act because i think this is for me this may be out of ordinary correct there's no claim for there's no specific claim for damages or your damage claim now is the thirty thousand dollars plus or minus that your client paid to satisfy a lien that your client contends did not have priority exactly that that would be your claim now and where are you going to worry i mean obviously that wasn't in the complaint because the the when the complaint was filed the lane hadn't been satisfied but how do you how do you practically get that claim asserted you didn't have to fi strictly limited to the amount of the lean that that was paid off if you want to reserve your time yes i do want to thank you very much was the the merits of this case there is a jurisdictional problem here and there are actually two independent reasons why we have a jurisdictional problem in this case which is your honour's we're discussing there's a moot issue because there's no effective relief that the court can grant at this point in time and second there's a sovereign immunity issue and they both stem from the fact that the statute that provided the court with jurisdiction in this case twenty eight u s c section twenty four ten no longer applies is there any ninth circuit law on the modus issue it's a relates to the facts of this case there is nothing it's wearily on point that i'm aware of your honor that's reassuring because we look ninth circuit case but we think it is analogous and there was a similar situation there in that the lien was paid off and the court found that the situation was moot there was no relief that he planned at that point that instance which is appears to be what an ip is trying to obtain in this situation regarding the moodiness issue one point that came up council stated that there is no procedure that fits here in order for them to seek a refund in this situation there is actually a procedure that fits it's provided under sections sixty three twenty five before and section seventy four twenty six eighty four and that sets up a procedure for a third party property owner such as an ip to essentially pay off  request a certificate of discharge from the iraqis which if they can then use to request a refund if that's denied they then have one hundred twenty days to go file refund claim they haven't done that here  what they appear to be seeking as your honour's pointed out is in academic or abstract lean priority ruling and the cases that they have cited for this proposition that the court can determine  priority under section twenty four ten none of those involved a situation where the lien had been released in all of those there was still a government interest in the property and section twenty four ten talks about quiting title when the where the government is claiming a lien so we would submit that none of these cases that they're relying on would support what they're asking this court to do which is issue this section twenty third ten waive the sovereign immunity bar for certain types of cases as provided in that statute and because we are no longer in a situation where the government's claiming  it no longer allows them to sue the government for damages which is which is what the appear to be seeking here and there are a number of cases on point such as judge of scanlan's done in black decision which discussed the fact that there isn't jurist that there isn't a waiver of sovereign immunity under section twenty ten when the government has the money in essence when there's no longer a cases are distinguishable here because they they all involve situations where there was a concern about strategic conduct  jurisdiction or sovereign immunity that arises out of diversity of citizenship cases and has been imported into the federal question contacts in some situations where there are these concerns so in most of those disagree with you government in these situations where you have sold the property because you're not allowed out the court of jurisdiction but that's not the case here we don't have any concern about the government manipulating the jurisdictional basis here i'm still a little bit confused here on mood so we have a client we have a complaint hard copy there on the podium and it contains two causes of action claims for relief neither of which are still existant because of the pay off of the lean mr korb announces saying however they still have an issue they still have a can his client still is concerned about the priority of the lien because in the event we were to disagree with the lower court then he would be in a position to file an amended complaint or proceed under an i r s regulation and procedure to seek reimbursement of the amount that was paid to satisfy the lane you know on the one hand i'm thinking this case is moon on the other hand i've got in the back of my head that this case  mootness i mean somebody is going to try to help me out on this maybe you can well your honor i don't see how they could then seek that amount what they're asking for is essentially a refund i guess that's what they would be saying in their amended complaint but the problem with that is the refund procedures regardless of whether you look at this specific procedure that we assert applies in this situation the general refund procedures all require exhaustion administrative leave which they have they've already disclaimed any intention or any assertion that they have attempted to claim a refund administratively so we would submit that there they don't have that that available to them at this point and doesn't have the choice to become a creditor and enjoy certain special protections against competing liens particularly state creative means under the controlling federal law and regulations and  one point that the parties seem to disagree on in the briefing is whether the importance of state law it's very clear under the case law that federal law controls priority situation characterization the lien under state law does not control in this situation and cases like united states versus actually the supreme court decision say that and in essence state law is immaterial in that in that point some of the cases that an ip is relying on in these circumstances i believe it goes back to the security trust case from the supreme court where that court basically says yes we may look at state law to the extent that they're claiming liens are federal tax liens are considered perfected upon assessment even went before they are filed so in a situation like this a party like an ip can only prevail if it's lien perfected before the i r s assessment  test for perfection the main issue that the parties have discussed is this summer or early enforceable requirement but there's also another issue before that if the perfection standards essentially say that under federal law you have to identify the the lien or the amount of the lien on the property subject when we have a failure of proof in this situation because we don't have the date difficult requirement to meet and there are only a few cases that have found that a state created lean had met the requirement and those are cases like the supreme court's decision in the united states versus for mont or the third circuit decision and monica fuel and in those cases there were only ministerial acts required for enforcement there was no judicial contest that the state mean mean we would also argue one of the points that an ip makes in their their briefing is they suggest that the government's position would give it by already over all mortgages judgment weekends that is not  argument and the reason that that would not necessarily be the case is because most of those liens or going to qualify under section sixty three twenty three a which puts them in a different category so section sixty three twenty three a the other way that they could possibly trump the federal tax lien has its own requirements but initially we would point out that they waived this argument below they didn't make it until the summary judgment stage they did not mention it in response to iraq atory questions that in mention it in their complaint discovery had closed when they raise the argument there was no way to do any further discovery into whether it qualified under the elements of sixty three twenty three and the by waiting to raise this until after the till summary judgment discovery close they sensually precluded any evidence evidence or a development on the issue  and that goes to show when we look at the elements there is no evidence of a contract here at the c c ours are not in the record which is what they're claiming is the contract so turning to the elements the main problem here we would submit is that they don't satisfy the requirement that they part with money or moneys worth as part of a contractual arrangement looking at the requirements under the regulation there they really seem to be contemplating something that a lender a bank a mortgage company would do being owed money which is what they're aligned on here is not the same as starting with money and a commitment to provide services or money at some point the future doesn't necessarily satisfy that requirement under the  the party owning the property that that was the difference for purposes of jurisdiction if you have jurisdiction because there's a quiet title action pending in which there's an iris lien in effect or you don't and the beckenham it demonstrates there wasn't anything available the sections sixty three twenty five seventy four twenty six they just don't apply they don't fit it's like putting a square peg in a round hole they do not fit in this action real quick on on the central issue  the there is no distinction in section sixty three twenty three and a between mortgages and other security interest fifty years ago mortgages in the in the statutes not in there anymore in the statute say purchaser holder of a security interest mechanic's lien or or judgment lien creditor mortgage the word mortgage does not appear or sixty three twenty three if you apply that severely forcible test asked by the united states and that is if you have to use a judicial foreclosure that is not summarily forcible as a matter of  the position if you play that test that every mortgage in the united states of america certainly arizona is not summarily enforceable in a duly recorded mortgage would lose priority to it to a later record i resolutely if you apply the test