we came up recently the moon is an issue that the united states has raised by a letter sent to this court a few days ago if the court would prefer i could address that initially i think it's the appropriate thing to address first on the representation are third party that's correct the u s marshal did sell the property as far as i can tell i don't dispute that i don't believe that moves this case though tell us why because for one thing if the order is overturned and that means that this one there is actually a quote in there of a clause that is no longer in effect that refers to an innocent person i don't believe this materially affect any of the arguments but i want the court to be aware of i was not trying to misrepresent what the statute says there is still an innocent owner defense set forth in th statute it's just been moved to a different subsection briefly there are two main issues that this case addresses one is whether the washington mutual's interest as a as a holder of a of trust was a probably recognize and survive the forfeiture of the united states the second one is if it did was the foreclosure sale valid now our position has been minute a petition to have the property forfeited to it's subject to the rights of washington mutual and in fact the united states when it did sell the property the third party actually paid off a lien of washing it and so has continued to recognize it along the way except for during the motion and during the arguments before the district court where it says suddenly that washington mutual didn't file an appropriate petition in response to the notice of forfeiture and therefore had no claim the property and as a result of that argument the district court went ahead and said well that order that i entered was wrong and they didn't have an interest there's nothing to foreclose on i submit that because of the united states position all along in this case recognizing washington usual washington mutual's interest did survive for foreclosure sale in part by relying on a section of the statute eight fifty three page two which prohibits any pending action from going on during a forfeiture proceeding if at ash and seeks to determine interest in the property longer subject to forfeit forfeiture that had been forfeited and there existed a lien pursuit that order in favor of washington mutual and at that point the united states became a mere property owners with fee interest subject and when that deed of trust wasn't performed they exercise their rights under the contract the deed of trust and they instituted a foreclosure proceeding and nontraditional foreclosure proceeding pursuant to a private contracts and foreclosed on the a certain order first to subsequently holders to tax anything else that existed that is prior in the balance actually goes to the fiona so so if there were excess proceeds on the foreclosure sale it would have ultimately gone back to the government not to the l foreclosure sale we would have acquired clear title of that property having paid for it what what the price was set by public auction at the through the bidding process so as a result my client would receive a free and clear as with any foreclosure a n disappear closure in california subject of course any prior liens but they don't think have a greater right at that point they would have been what should have been approximate fair market value with it at a distressed sell and that they would have paid excess proceeds and get this case morning your honor stephan casella from the department of justice for the united states i'll just move this question first your honor i hope the case is not moot but i fear that it may be and that's why i thought i had the obligation to bring it to the court's attention  statute under which we operate eight fifty three and seven says that when there's a final order of forfeiture the government has clear title to the property and can warrant such clear title when selling the property there was no obstacle to the enforcement of the order of forfeiture in this case the order setting aside the foreclosure sale was not stay the martially ice's had their title the marshal's warrant a clear title sold the property to a third party purchaser and  that the court has no power to grant the relief that the talent to seeking the in this case may be moved and so that was why i brought the matter to the court's attention happens to the my understanding from your letter is the property sold for about three hundred eighty thousand dollars basically became the the property of the united states that money two years ago was deposited there it has been since appropriated out and spent of course the government has a deep pocket we still have money but that particular race has been just it depends on what congress is doing and yes i take it the government doesn't have a dog in the fight between washington mutual and u s financial over that so sixty three thousand correct we paid off the lean washington mutual so it was satisfied and that was the end of the matters far as we were concerned with the this treaty court on any kind of remain and have the authority to deal with the dispute if there is one the tween wash mutual and u s financial over that i don't know that it would your honor it would it would be collateral certainly to the sort of core feature that the matter before this district court was the u s interest in the property that has been disposed of finally and i don't i cannot think of a forfeiture case where followed those steps in this case and ultimately issued an order of forfeiture giving title to the property to the united states subject to washington mutual's lien and ordering the a marshal service to take possession of the property and sell it now in the normal course according to the statute what would have happened is if the marshals were sold that property paid off the link but before that could happen in this case washington mutual exercised self help conducting a foreclosure sale and selling the property  appellant is it the government's position that washington mutual had notice of the government's in interest before it did that yes washington mutual definitely had notice of the government's interest in several ways that was a notice of the forfeiture of  actually government everlast recognize the interest procedurally that probably wasn't the right way to do it the government is not in the business of trying to forfeit the interests of innocently holders the right the better way to have done that would have been simply to recognize the lien pursuant to our policy on recognition of leads to the remission process rather than have the court recognize a leaning getting which no claim of them filed because that would not have been what the statute provided but in any event because the objective was to recognize the way and that was done the civil problems with mailing i understand it your honor the it was mailed the return receipt from the postal service was received it's in the record the only dispute has to do whether whether it should have been mailed to the legal department the supreme court's decisions in central i'm elaine central labor's essential hanover bank and this is very versus the united states and it's a it's a notice provision that has to do with making sure that notice is received in accordance with the process it's not a service  requirement that in any event it be the foreclosure sale was recognized by washington mutual to be invalid but the appellant does not so recognize that they realize that they paid less than half their market value for the property and are seeking the enforcement of that even though the foreclosure sale was in disregard both of the order of forfeiture itself and of the comprehensive detail procedure that congress has set forth litigating and disposing of property in cases of this kind and there are several reasons grounds on which this court could rule in favor of the government in affirming the order of the district court first that the court court as the district court held could rule that the washington mutual no longer had any interest in the property at the time of the foreclosure sale because that interest had been extinguished previously by the civil order of fo must be done pursuant to that statute when foreclosing on on real property this court did not reach that issue in its decision in the round hill drive case but judge walk ins decision does in a footnote list the cases that have so held that foreclosure against the government is to federal law when the state legislation is inconsistent with and if the trucking a federal purpose service even if the foreclosure were allowed in this case it was not done properly service of the foreclosure matter was not given to the united states attorney's office it was delivered on to the marshal service and so it was invalid for that reason rule four eye of the federal rules of civil procedure is fairly clear the notice has to be served on the united states attorney for washington mutual never recorded before but the deed when they completed the foreclosure action they realized that there was a procedural defect they realized that they had made a mistake in conducting the foreclosure sale they never delivered the we've already mentioned the fifth ground which is that this court might find that this matter was moot let me turn to where i think is the most important element of this case as the district court ruled there is a federal statute section eight fifty three k which specifically barred the foreclosure action in this matter it says that a third party cannot commence any action in or equity against the united states interrogation of the government's interest in property subject to fo particular type of foreclosure proceeding but section eight fifty three g gave the district court the power to protect not only the government's interest in forfeiting property but also to protect the integrity of its own order and the integrity of the  judicial process that that is set forth in the statute and section eight fifty three g on a quickly applies to property that has been ordered forfeited past tense is not only applied to pending cases me as i disagree with my counsel three points the first one hundred fifty three g deals with the administration of profit has been forfeited to after a forfeiture order a final orders entered the forfeiture case property is forfeited and those rules don't continue to apply to it the right of washing which was recognized they had a right to all the rights under the deed of trust including the right to an occupation for photocell upon nonpayment the last issue washington mutual has not recognizing ability the foreclosure their position in this case