morning and morning so we marshal on behalf of what you're going now frust company this is a statutory construction case where the primary ascertain and give effect to the intent  legislature the question for this court resolve is whether the legislature intended the condominium property which i'm going to refer to as the c p a to conflict with and just place the only mortgage a government is the more specific statute we believe the court of appeals was wrong for several reasons first up the legislature consistently intended the c p a and i and i fell to be read together the baseline this court should presume that the legislature intended to statutes which relate to the same subject subject matter that they should be read harmoniously in this case there's every indication that the legislature intended just that the only way mortgage foreclosure lots pressley governs the foreclosure of condominiums in fact it refers to condominiums and no less than three sections they kind of we have zero what we believe to be a clear indication that the legislature is trying to get the statutes to work hand in hand not not to conflict with each other they should be interpreted together and they should be interpreted is that the condominium association after the sale was confirmed in the deed this transfer issued a demand for sixty thousand dollars that included forty three thousand of which included the prior unit owner's unpaid sosman before my client took title and before the judicial foreclosure sale there was a very significant concern that if we had begun to pay assessments only going forward basis that those would have been credited not towards the new assessments but towards the unpaid assessments of the prior owner and there's some indication that that's in fact how it would have been credited so we would have been in a situation where we would have been likely accused of voluntarily making those payments and there is a significant concern that if we did that then we'd be that issue as well and potentially moving this this broader issues that it was in front of the court we certainly did not want to do that with  this that ninety three what seems very very clear and believe me i understand that these statutes are accompli acts they're confusing they're somewhat byzantine but what is absolutely clear is that the legislature did not intend to make a foreclosing mortgagee liable for prior unpaid assessments before the judicial foreclosure sale there is no provision in the c p a or the i which expressly makes or closing lenders liable for prior unpaid assessments and the legislature knows how to do that if they do and the best evidence of that is sections ninety four and ninety put purchasers on notice of that potential liability what they didn't do in ninety three is any of those things they didn't say that they didn't clearly express it and they didn't put unpaid assessments are lien on the property then ninety four really has has no meaning because both ninety three and ninety four applied to third party purchasers a judicial foreclosure sales ninety four is that it to say you can only be at a liable for six months of prior unpaid assessments well the court of appeals interpretation of ninety me the notes that they were trying to resolve uncertainty it does not mean that that we're going to allow a lean that's been previously extinguished to be resolves any uncertainty as to the extinguishment now with ninety three and ninety four i want to drop this contrast a little bit more because the not only do you have  a clear conflict between those two provisions under the court of appeals reading of ninety three where you've got a limitation of six months and then it only limited potential liability under ninety three but if you look at the legislative history when ninety four ninety five were enacted in two thousand and six when this six month period of liability from prior unpaid assessments was enacted the legislature knew exactly what it is doing there has been done before in the state of illinois the legislature had a big debate about it this is in two thousand and six they recognize that it was a significant and i'm quoting here a significant change in the public policy of the state of illinois one representative all that a massive change of law that it was a fund that fundamentally changes the foreclosure law and no noise because foreclosure is done to extinguish lanes and now we're hundred ninety one when the second sentence of ninety three is that it it's called a minor clarifying change a technical amendment there was no recognition whatsoever that this minor clarifying change this technical amendment would work the kind of fundamental massive change to the law that the court of appeals found here making a purchaser at a judicial foreclosure sale liable for an unlimited amount of prior unpaid a sustenance no recognition and one would think that when and without providing the type of notice provision that was added to the i m f l in two thousand and six for the six month period none of that happened here there is a clear record here that the well we're my uncertainty exists and certainly might exist if for example the lienholder the convent him association was not joined in the foreclosure action and that's condominium assessment lanes they're frequently not recorded so third party purchasers of foreclosure sales are unaware of them condominium associations are frequently not  in foreclosure proceedings under the nine f l as a result so we're in a situation where foreclosure of course a third party purchaser at a foreclosure is looking for clear and marketable title how can we resolve that uncertain day well we've got a second bag of them we have with we have ninety three and the second sentence of ninety three of course says we're going to confirm the extinguishment of any lean by the  uncertainty we're going to confirm extinguishment billing you know the second type of event if the condo association is not named as a party in that circumstance their lead is not extinguished because it's not extinguished by you know it is extinguished by ninety three if the payments of the sustenance are made following the judicial foreclosure sale and that's precisely what the not joint perhaps because the lien was not was not known was not recorded now there's another type of potential uncertainty and this goes to the first sentence of ninety three the first sentence of ninety three which was added in one nine hundred eighty eight were a change in the law prior to ninety three being added it was clear and of the case law and the newport condo on any third party purchaser to foreclosure to pay its sustenance back to the time of the judicial foreclosure sale so there was this what i would call sort of an oh man way you've got a unit owner who's getting foreclosed on the judicial foreclosure sale happens i would say the bass vast majority funeral owners at that point are going to stop paying assessments if they were paying them at all they're not going to pay assessments after the judicial foreclosure sale happens but the conduit but the foreclosing purchaser wasn't liable in something frequently happens you know several months or in some cases and so there was this no man's land where nobody was really paying those assessments between the time of foreclosure sale the time of the confirmation the sale so they added ninety three to trying to clear up that no man's land and say ok you're going to come in and foreclose you should go ahead and pay those at the back to the judicial foreclosure sale it after the sales confirmed and you take title well three years later that second sentence of ninety three was added where it says such payment confirms the extinguishing of the lane again resulting on certain day in that no man's land is there a lien who's you know you still have the unit owner who's potentially liable for that let's resolve that uncertainty let's make sure that hey foreclosing purchaser if you go ahead and make those payments back to the judicial foreclosure sale which one and so the court then walked to section ninety three that such payment confirms and said well the foreclosing lender in that case made the payments up so you know the other point i suppose i would may like to make before i i said donna last or any other questions is that this is also consistent you know with the common wall rules and you know a common law you go into foreclosure you're extinguishing all the junior lien holders you're are getting clear in market will title which is in the public policy interests of the state of illinois to make sure that foreclosing purchasers do get clear and marketable title and that's what the common law law for the legislature when massive public policy change in the state of illinois now they did that in two thousand and six with the six months but they knew they were doing it then oh thank you property was a up and coming musician who couldn't afford to pay the rent and eviction proceedings started and at some point time the tenant moved out so we had to proceed but to service by posting under section one zero seven of the force section one of seven allows you to post a notice and in a landlord tenant case when that happens you can only get an order for possession not in a money judgment against the time and we proceeded and got possession back that way about six months later i got a call from my client who is travels internationally quite a bit called me up to matt i'm in japan at a trade show you'll never guess or entertainment as tonight i resell it our way were ten it got him an  which he was able to get served on the tenant and we were peer before the court where we already had our order for possession of the judge looked at me and said mr colbert how can you do this your you have a judgment it's a judge i would point you out to section one zero seven of the forcible act there's a small sen at the end of the first paragraph which says if you get a judgment by posting the claim for rent may remain pending until such time as the defendant is served with some things you just looked at me and just leave she read the statute a few times and finally looked up and said certainly cannot ignore it as if it doesn't exist at council mention you're here today to interpret the second sentence of ninety three the canons for interpretation are start with plain meaning which really isn't in dispute here i know counsel would argue the definition of confirms but both the pumper case relied upon by bank as well as the ten ten case here before you today both came to the same conclusion as to the plain meaning that is the payment assessments which confirms extinguishment of the lane where the cases differ is in the application of that language but the meaning of that really isn't in question so under plain meaning approach the tenting his should be affirmed the second method is imparting materia if you believe ninety three is in conflict with the plain language of the n f l then using party materia or the harmonizing of the statues you've been provided with two options for harmonizing the statues  the ten ten option is to treat it as in additional step in the foreclosure process the foreclosure process is a general process for closing liens another engineer liens and other claims against title to sell the property it concept is not foreign it's not something we haven't seen if you think about what it really is doing and what was going on back at the time the statue was passed you had banks were purchasing these units and weren't paying assessments and the legislature  already told us how important it is for these associations to get those assessments and this and many other courts and recognize that here in spanish too in the lake hinsdale case it's easy we're recognizable why not for profit needs these assessments in order to pay its bills so the concept is simply almost one of unclean hands or if we were to liken it to contract you know the non breaching party to the claiming party limited to situations where an association does not need an a for closure now ninety three one which makes no such distinction also taking that approach ignores another section of the kind of new mac ninety one which was also amended after newport which is the case that pembroke of course relies upon the last sentence was added to say in any action to foreclose on associations lien the association shall be named as a party so it's not permissive and this really also is not a foreign concept is due process and why is it so important for an association to have its sting court again i would point you to the lake hinsdale case the unrecorded lien recognized under ninety one has to be accounted for and it gets perfected as of the date of nonpayment unlike other liens which must be recorded to get his perfection day so as may come if you just repeat that last statement about recorded and under ninety one ninety one taxes and those winds that were recorded before the first non payment and the facts in the lake can still casework the associations assessments one paid before the state's lien for the unpaid medical bills condo comes first and all assessment after relate back to that date so so we see from which instill the importance of the slain and the power now i mentioned before due process we know from this course decision hogan vs bleecker  statutory lien is property and that's what the associations lien is under ninety one we know from pointis vs seven a us supreme court case that any property right no matter how large or how small must be given due process for the owner can be deprived pembroke did and not name the association in the in the case and then say that simply deprived under ninety three avoids the possible argument under lake hinsdale that hey we have a severely potentially they weren't given lean what matters you were given your opportunity in court and that makes the pembroke case and unconstitutional reading of ninety three and again you've only been provided two options and i'm not challenging court come up with a third even provided two options it for harmonizing the statutes the extra step approach which follows other mechanisms we have the law in recognizing the common law or this unconstitutional due process violation if you prove me it's unconstitutional to due process violation that's not or that's not a reasonable harmonization and that is the key factor in harmonizing it has to be reasonable so if you take i want to off the table you're left with the extra step approach and again the ten ten k should be affirmed under that reading very specific to i usually condominiums now this court had the opportunity to review a similar situation remember the i'm a part of the code of civil procedure this court reviewed the knolls vs harms case which involved another section of the after the newport case and if you look at the comments from the from the legislature they all have a common theme when does the usual sale purchaser have to pay new assessments so the legislature knew r and again although thomas vary a little bit all three have the same underlying the same underlying intention how and when is the associations laying foreclosed and all three of those statements make that same get the same idea across that is what the legislature was trying to accomplish when it inactive the second sentence of ninety three is ninety four feet and i'm glad you asked that's a great question so ninety three does not conflict with ninety four and five under either interpretation they basically said their own separate spheres which i believe was their first thompson his ninety three affect any judicial sale purchase or ninety four and five affects only a judicial seal purchaser or a third party purchaser other than the mortgagee so there are different actors ninety three affects the entire ninety one lean ninety four and five affect only a specific six months so ninety three affects current rights and obligations were ninety four and five affects future rights and obligations they are different actors effect different actors in different scenarios and so there is no effect between ninety three and ninety four and five in fact i would suggest ninety four and five assumes compliance with ninety three which should've happened all along one of the point that was made up here today because the coming back is not an enumerated exception it wasn't intended to be again i would turn to noise versus farms where that exact same argument was rejected by this court unanimously in those verses harms again it dealt with the homestead act and the defendant in that case argued that under the homestead act there are a list of exceptions that need to that apply to the homestead exemption and economy i'm association philine is not one of them therefore the makin the right to collect assessment should not be read as an exception to the home so that this court said no that's not accurate i would encourage you to follow the exact same reasoning in the first homes council i think it sounds like you have these sections of the commemorative but a nine chief five when it talks about the of statement of assessment account that's issued to a unit owner under section eighteen in that the disclosure statements issued when somebody is buying i think that's the twenty two point one scuse me what i'm trying to get at is what mr marshall was arguing before that typically these outstanding assessments are not recorded so as a practical matter pull out the rulebook when he says you just ran the red light it says right in ninety one that you so station has a lien whether it's recorded or on recorded and that is perfected as of the date of nonpayment and it says the so season shall be named in the foreclosure case it's there for a reason it's there because the legislature wants to protect these assessments it really recognizes living in a commune is like going out for a dinner party and one person gets up before the bill comes and leaves everyone else has to pay that bill and the legislature holds his assessments there and recognizes the importance that the association be able to collect them and we have a lot here that has gone on collect so i hope that answers well i'm just trying to think this through of deutsche bank wanted to find out would they have the right to get that information from the god to me and they're not a they're not a prospective purchaser and in the twenty two point one context holder has the right to request the account history of the unit and it shall be provided on within ten days and that actually that issue came up in late hinsdale and the court addressed unsaid so you could have asked for this you have a recorded lien you could have asked for that that ledger and you had the right to essentially redeem it to pay off those assessments to perfect your earlier put it in the first position and then you would have been fine you chose not to do it that's on  you and ninety three really should be looked at the same way you know going back to my point about you know equity and clean hands those may chose not to pay these assessments and i realize that the suggestion is what we thought we'd be in court on two issues if we hadn't paid it first if we paid part of it versus one they could have sent in the check with a letter or language on the check the said this is for payment of assessments from this day forward and show only be applied for this day forward that would have either had a legally binding effect or at the very least would have become a factual issue they could have presented to the court saying we tendered this money we made it available to them to pay off these assessments and do what we were supposed to do they refused it they rejected it that would've been a very different case but those are the  means to make certain there really was no problem with ninety three before the second sentence was added everyone understood that the purchaser had to pay the new assessments and there was no question that under the old reading of ninety three before the second sense was added that there was no effect of the nonpayment in terms of prior assessments so to add this language didn't clean up work or confirm it's usually something that already happened it was added i think for a purpose i think was added to say you know what banks you have this money you should have been paying it all along we're not going to help you if you're not going to pay your assessments so i think this was intentional years i think you're balancing the equities first actually if you go back to the if you go back to the legal interpretation the canons i think if you look at plain language i think ten ten should be affirmed the plain language really isn't in conflict if you look at in part materia there's really only one option that works and that is the extra step method and again the tent in case should be affirmed under under that method and lastly if you look at the other interpretive aids which was a more recent which was more specific what were the comments of the legislature again i think ten ten should be affirmed under that scenario the charities that come out of this case that i want to finish up with as i mentioned before i've been doing this for a long time and i've been dealing with banks for a long time who don't want to pay assessments before the ten ten came case came out we would send these demands to banks or even talk to the bankers and payers estimates and the excuse who would get universally from the bank was don't worry we will pay you when we sell the unit now what makes this so ironic is that the exact same excuse if you will that the mortgage orders were giving their lenders mortgagees i will  you the mortgage i'm trying to sell the unit and i'll pay you back the mortgage when i get it sold don't for clothes on me these quiet thanks didn't accept that excuse why should the associations accept it from the second a nd i think in hindsight being twenty twenty and seeing the ten ten case ninety three worked and what i mean by that is now after the foreclosure sales confirmed my colleagues and i get calls almost the next day we get e mails right away from these institutions saying hey we want to pay these assessments right now so we don't have this ten ten issue ten ten worked ninety three work is banks are now doing what they're supposed to do and i think that's very important to consider i thank you again for having me today thank you  it is a third party purchaser of the judicial sale other than the morici so we have what you know what you could refer to this is almost a secret lane and you know the court appears manifestly unfair to allow a condominium association to run up huge stuffs ment's let them go unpaid for years and we're talking about ten years in this case and then in effect assert them against a foreclos when that could go as far as swallowing up the mortgagees entire that was not what the legislature intended to do with ninety three and ninety four and in fact my colleague said that ninety three ninety four that different actors that's both true and not sure it is true that ninety four does not affect mortgagees it clearly says although the mortgagees but ninety three affects everyone it affects all saying you're limited for that and for the non mortgages you're limited to six months of unpaid assessments that you're going to have to pay for and you get you know about it because it's in the notice of sale and you know you're clearly on notice of it ninety three is saying unlimited in this case ten years and that affects mortgages and not mor massive change in the law now as i would submit that that should not be extended here that type of massive change should not be extended here thank you his number one one eight three seven to ten ten like sure association or stage a national trust company will be taken under advisement as agenda number twenty two mr marshall and mr goldberg we thank you for your arguments this morning now you're excused at this time