collecting federal money so we can federal student loans the department of education contracts out the enforcement effort on federal student loans they contract was serve al private collection agencies and in turn those private collection agencies so count tracked out some of their business to other collection agencies the defendant in this case national credit services when it did get a piece of that business my client said cetera as a niche business in that they counsel companies such as and c s and their effort to obtain these federal contracts so my client entered into a finder's agreement with and c s the purpose of which can be gleaned from the agreement itself and lower concluded that you were not entitled to fields and here we have this compensation section that says the principal shall pay fees to the consultant for the duration of any agreement resulting in said fee transaction doesn't that indicate that the agreement comes before the fee transaction and if so how could the transaction mean the consummation of the agreement the way this is structured is that if within the six year life of the agreement the and c s gets any business collecting federal student loans argument that we should read the compensation section here to say that there's payment during the for the duration of the term of this principle third party agreement resulting from stand fee transaction but it doesn't say resulting from it says resulting in how can you help us understand that but i'm not sure i even understand what you just said because i'm i'm looking at what has happened between the parties there curiously enough in research and along this case the law is exactly the opposite of what you just said the law regarding brokers in real estate transactions is that the brokers fees do over but i bet it did go off a lot of contracts reason is supposed to general law is that the broker earns his commission when he makes the deal not a closing so one contracts are written they get around the general law they specifically put into a contract you don't get paid until the clo made here they've got you've got to consummate the deal but that i might not accept that you'll be entered into this is not a sale there's no closing in this case there's no there's no set time in fact the only case we lined upon by the district court for the proposition that the hottest case with one nine hundred fifty five and if you read the east agreement of sale in that case you give your sale specifically states the time when the commission will be paid and that is and so at closing the deal was consummated is carried out completely by cuts carried out completely is not the only definition recognized in the law of the word surrounding circumstances are important well before we go to concerts around these circumstances help us go through the text of the agreement here ok let's we have the transaction being defined in this instance raymond in two ways one of them makes preference to the consummation of any transaction it's the first one and the second is the subsequent consummation of any contract is there is there a different action in your view that's required to earn fees under the first and the second is there some significance to consummating the transaction there is a constant on track the first situation do we have here the first situation is under under sentence one of a definition a fee transaction that refers to a contract with the to be a subcontractor with inc p c a for the student debt collection business and the way this contract is written the second sentence refers to a contract your client is owed fees for yes well and fact there's nothing there's nothing my client has to do except oh regarding the direct contract because if a direct contract is formed during the like the agreement the fact that they required something to be consummated later on if they weren't referring to the contract that you're talking about well on the first part of that i agree on the second part of that i disagree consummation is a br used word the courts use it repeated lead to refer to the formation of a contract the congress uses formation of a transaction or so i consummation of the transaction in the truth of lending act which this court has interpreted to mean entering into an agreement not the performance performance can be is something many times separate from the formation one of our canons of construction under new jersey lies the canon against surplusage we try to give meaning to the actual words that are being used and we have here consummation  states the fee transaction being consummated but then feed transaction in its own definition uses the word consummation so when we put them together we have what is perhaps an article drafting but perhaps has significance  which is what i'd like you to address and that is it literally would mean that fees are due when the consummation of the contract is consummated and that doesn't that consummation of a few transaction and need to mean something more than simply consummation of the contract because it's saying that that event the consummation of the contract is what needs to be consummated under the literal terms of the agreement in order for you to earn your fee isn't that something more than simply formation of contract as in perhaps performance i see i agreed if you had to do so sir plus which i do not agree with your conclusion the reason being that the surrounding circumstances suggest otherwise under the if my client is not paid on toll the completion of the contract are car out completely then he would never get paid because the contracts are not carried out completely for years and often until after the expiration of the n c s agreement with my center and in of a contract ok thank you thank you morning may please the court my name is arthur for three more from the law firm cozen o'connor and i represent the appellee national credit services this case is really a case about fed sattar i wanted to rewrite the terms of the agreement and the conditions necessary for them to get a fee in a case where they wrote the agreement itself and they've already garnered eight hundred thousand dollars approximately in fees from this agreement based on one in her doctor and to a c t you know disagree that they power understand that based on that one introduction feds had or has to date be able been able to collect almost eight hundred thousand dollars in fees and was asking for now is a huge chunk of all the fees going forward can definitely unambiguous yes your honor and i do think that i think and whether this contract is ambiguous to some degree depends on the allegation that's being made what's been made here in the only allegation in the be able to survive judgment on the pleadings it has to argue which it has done that consummation of a fee transaction means signing an agreement so it is not only pleading that herman that they have applied in their complaint regarding the department of education and what's wrong with that think you pointed out what was wrong with that during your questioning of fed sattar which is that that is not consistent with a common understanding of the word consummate it's not consistent with black's law the definition of consummate and it's not consistent with the way cons we don't have to guess about what the subject is of consummating here because we have specific definitions of feet transaction one involves consummation of a transaction that's not what they're there talking about here we're talking about the second definition is that expressly states that fees are due on the subsequent consummation of the contract so why is there at least not ambiguity around whether or not consummation of a contract means just that consummation of a contract is in kind of contract formation as we all learned it in contract law school because you're on or under even if the definition is ambiguous what is not  in the case or has borne this out in black's law dictionary is clear consummation is not signing it's not just the execution of the agreement every example that's been cited to by and c s as well affected cetera shows that consummation is something more than a contract that i can't make consummated the contract that we're talking about here but i don't even look at the facts of the case after they have this initial contract as you would refer to it as signing the that the debt is also given over to the borrower at the time so there's each of these cases or something other than signing for the brokerage there's an act of the brokerage agreement tatis there's a signing an agreement and then the later sale of the actual house and the truth in lending a green act cases there's there's the delivery of the actual loan and that happens it happens at the same time as the signing of the green the but that's the additional piece that makes it just consummation as opposed to just signing the text of that contract is not i think before the court it is publicly available on the website the fed cetera cited to but i think you know and the district court did not consider the terms of that agreement when it granted judgment on the pleadings and i don't think that it had to the simple fact is that consummation and here you have consummation of a fee transaction where fee transaction is then defined as consummation of an agreement so you have consummation of consummation of a contract based on well so for example the contract with the finders agreement itself would not have been consummated until there was some performance under it that is you know feds had or went out and tried to make intervention or do something on behalf of n c s here you have a great example where all you have is the signing an agreement and what's alleged is that performance they're not even begin until a year later and being a c t situation although i agree is somewhat distinguishable it's relevant in terms of the course of conduct of the species and until there are loads delivered to n c s there's no fee to be collected there's no revenue the contract is just sort of sitting there waiting to be consummated there's nothing for them to collect it's the same thing with the department of education contract here you know according to the complaint you have the signing of the agreement in september of you know before their political period runs out and there are no ones delivered under that contract and so yes prentice to service until well after wards we should read this so that consummation of a contract doesn't even mean contract formation it actually means contract performance it means yes mark i'd more along the latter line of argument i think consummation means contract formation plus some indication of performance whether in the truth in lending act he says it's the delivery of the loan whether in you know intellectual property case is the actual delivery of the intellectual property and whether in this case it requires the signing of the agreement or the formation of the contract and then later the delivery of the loans here you know you have a very typical structure which is is true in that in that residential commercial property or the residential property sale context which is this agreement sets out the outline of a structure for the relationship between the parties that is and c s and the department of education just by signing the agreement there's no delivery of actual work to n c s there's nothing no fees to be going too far into the details of the agreement i think that's fair enough far but in that case let's go back to the language here because this second definition of fee transaction talks about the subsequent consummation  distinguishing between the award of a contract and the performance of a contract and that the finder is supposed to be credited for afa sillett eating the award but only if a fe contract the sentence then goes on to explain what that is and it distinguishes by its terms between the award of a contract and that being a contract to perform it then says that  until you start collecting fees despite the fact that you had already signed for the collection fees i think that's right and in this case your honor and i think all the court for judgement on the plea is based on what the district court has ruled is a very narrow issue that the that the terms of the contract with the department of education are not in that record that the district court ruled on and i think all the court this court has to find in order to firm the district court is that consummation is something more than signing that being said contract would never be consummated at the point that the contract was signed here was the contract awarded no i think under this master contract the department of education contracts for the service of other ones were then awarded so in terms of this is a somewhat familiar structure where you have a master contract governing the overall relationship between the parties saying if we give you one of those these are the general things that we expect and here is generally what you can expect education is not obligated under the agreement to provide any loans so performance you know implies fulfillment of an obligation under a contract the department of education contract with m c s the one that's at issue here doesn't have any obligation i think performance would be in that situation to fall the first would be n c s actually servicing the ones which are obligated to do upon receipt and second is the department of education paying fees to and she asked for the service of the loans which is what the department of education is obligated to do under the contract but if you're if your argument is that i'm feels turn on the performance that is fees turn on when you're actually given a loan to service and we have here something that talks about awarding a contract and that contract the contract to perform how do we reconcile those two different concepts that that is an award a contract is awarded first and the contract is to perform going forward with the approach that you want to take to win fees or do which would would not be the award as i understand your argument it would simply  relationship between the department of education and she asked that's the agreement signed in the political period you don't have any ones delivered under that a award of a contract to perform until well after the a clickable period and that is the consummation that you need in order to be entitled to a fee so what is what is the contract that's what at the outset what is the contract we're talking about the contract is a it sets forth that the relationship general understanding between the part that patient a separate contract is then executed every time a loan is to provide to service i don't know if it is a separate written agreement or not or whether it's the delivery i don't know exactly how discussing is so clear and unambiguous that judgment on the pleadings is warranted and can that really be given that the various and definitions and permutations we've been discussing  morning that is it is and truly unambiguous i think yes for this reason the reason is that what was alleged in the complaint was that the agreement was just all th the signing of the agreement and it was specifically alleged that no performance at all nothing else happened until well after the acquittal period so in so far as consummation means anything at all more than signing which we think it clearly does addresses the formation of the contract the direct contract with the department of education and indicated n c s was invited to compete blah blah blah and a would be nice from the federal government in two two thousand and fourteen of an agreement between department of education and c s performance on you know in the words bunny coming in our business coming in did not begin and it began money because you have no damages you typically go forward with this additional agreement i feel to the contrary that even the circumstance that this fact these facts plus the circumstances that mr procedure described and hence my argument because the surrounding circumstances that everybody knew how this works it was second my client knew how it worked and the point here was to get your foot in the door and get the contract because you get the business by before mation money and there's nothing that you couldn't get any response from because there's got to be another contractor well i don't believe there's any other contract i'm the point going and the point being as i explained in the beginning that the federal government selects a handful of contractors who are private collection agencies that's direct contract between these companies and the department of education and then they get this business which they suck some of which they sub to specific performance you would be back in front of the district court of the only and it before the district court there may even be a threshold issues of and to the extent permitted under state law introducing extrinsic evidence outside the four corners of record got wrong i believe that the district court you are in misinterpreting the use of the word consummation and i believe that the follow them as i indicated earlier if you follow the district court's reasoning and the reasoning offered by and c s for for under motion notice that the contract consummation means carrying something out completely there's no law that says that and that says initial and mitchell performance is necessary if you can have a you can have a contract formed you can have performance in the future which is basically what we're saying is happening as long as this contract was formed within the life of the fed cetera agreement who are entitled to payment that's our position form to you means signed as alleged in paraguay fifteen of the complaint we've made is it agreement in the grease is the terms of the