what about the remainder of the money the remainder of the money is within if anything different is to be done that is within the wrong the bankruptcy court and the rights to pursue the remainder of that money are really all that we're here to discuss today that in fact he did take another six months or soon to be file to seek damages in this certainly there's no question that the first element for instance that party took two positions exists here are certainly the first though that a party to two positions exists it's respect for the there's no clear and convincing evidence that period two and two positions that were factually consistent with one another and there's certainly no evidence that she intended to try her back beyond it intended to deceive the court circumstances that could have played off could have existed could exist they guys to this point and the summary judgment stage we are entitle to the most favorable interpretation aug twenty three teens before that supreme court opinion seymour came down after this hearing the circuit court was unable to make a ruling and remand of the matter for further review with respect to the issue of intent along circumstances like this to determine whether judicial stop should be applied despite the course hesitance at the outset has a tension which demonstrates that certainly there are if this is a summary judgment based upon the defense an affirmative matter that precludes whatever right you have might have for some sort of remedial relief yes so was this the hearing on a two six nineteen with out evidence being presented other than affidavits and depositions and documentation yes i believe so ok context is a hot topic in particular so because of the recent decision of the illinois supreme court in the seymour case which was initially in the in this court i want to why that doesn't have any application here in the in the seymour case the question was do you have a duty to report the claim or not and in that case the key for was that the injury took place after the charter thirteen bankruptcy had been filed and at least according to the supreme court in the trustee in that case there was at least some question as to whether there was a duty in the first place the trustee affirmatively testified that she told the debtor in a not so many words that he didn't need to report it his attorney testified that the trustee told him that he didn't need to report that he only needed to a poor liquidated lump sum recoveries in excess of two thousand dollars and of course because the case was pending we didn't have any recovery so we didn't feel like he needed to put it in this case there's absolutely no question that the plaintiff knew that he had a poor display well in seymour were there inconsistent positions taken well if you if you take  disclosed essentially what he's doing is he's putting the ball in the trustees court the trustee now all has to do some investigation in order to understand what this means is that it says that with filing judgment is supposed to be when something seems like it is well the trial court is supposed to exercise its discretion in this regard and that's not good well or the other way tell me what the discretion is that it's supposed to supposed to take place until the final moments of them stand which correct well we're i thought i was discussing the element that will lead to whether or not the party to be charged took inconsistent positions ah and then it seems more to me that it's not inconsistent then apparently it seems to you well certainly inconsistent with his intent to pursue this claim don't know the exact identity of the defendant but you're charged with disclosing those facts that you have and those facts that even the facts that he had were that is new was injured or it was injured in a traumatic accident he was at a retail store which he hand at the time he initially found his bankruptcy but also at the time that he filed in october of two thousand and thirteen the amended schedule and in the absence of saying look it whether he had disclosed it because if the trustee had requested further information i think that steve would have been very good grounds to suggest that any more any need to present more the question of for this court is whether or not the information that was given ultimately resulted in taking two different positions upon which this individual derive the benefit from it is nothing we're not here to decide what quantum of information is required under the statute our duty is to determine whether or not there are inconsistent positions taken such in the first case versus this case and he you're talking about compliance with  you said instead of a possible claim versus interested in things possible that would be some kind of a disclosure it would be in this part of the schedule where he's supposed to disclose a claim so he can say i'm disclosing there is a possible claim because i did write something i did file something one of your counterfactual conditional is is of a valid reasonable argument to make the response to my stand but it doesn't change the fact that notifying the court of a possible claim which it probably should have made further inquiry on is or is not an inconsistent position in seymour there was no notification in our case merely on it as well all good nish will petition in july did not disclose any that's true and there is no there are no facts in this record to explain why that was not disclosed at this or inferences in favor of them point of how to rationalize all these factors in such a way as to establish that there was a inconsistent position on a leash a benefit was derive which based upon i believe the language indicated that he was the benefit that he was going to be deriving was fifteen thousand dollars which seems to be consistent with his position so i'm curious question did indicate that it's typically decided under a two six nineteen which i wouldn't disagree with but to do this in the for all intents and purposes the standard was the same i mean the facts here are simple the facts here are intentional home ever to the lead material disclosures from the bankruptcy court and the only possible motive for that  certainly on the initial disclosure there was there was no disclosure of the plan whatsoever that's clearly inconsistent the question then becomes does he do the amended schedules sure that inconsistency and create a traditional a style because if you keep referring to the initial filing and from what i could tell from the record there is nothing to indicate that the based upon the initial filing  thereafter this person wasn't going to quote unquote get a benefit that is inconsistent with any position that he he allegedly ultimately raise or lower in the other the court  sing the universal petition is part of the contest is part of the facts and circumstances of the court is to take into account this is what seymour tells us the court has to look at all the facts and circumstances and then make a judgment then that information previous that were free or you're referring to might have some reality relative to whether or not there was a fraud i'm saying that when he goes down on the amended petition he's united the able he knows he hasn't disclosed this claim he knows he has a claim he knows he has a duty to disclose it so why not full disclosure why not at least partial disclosure when at least really being given full disclosure on that amended schedule and same here sign is because i put everything in here that you should be doing or was he trying to mention spezza and protect the client which is it at this point in the proceeding of the summer each other alone holder our good to look at the facts and circumstances and give terry the most innocent interpretation available and that's what it is it's that terry was as forthcoming as he thought but we don't know what he told i just might ask you what did he tell his lawyer we don't know that he told the water all the facts and circumstances that he knew was for evil bagels and true then all he told his lawyer was i have someone known com after after surgery things are going well he has substantial hospital bills and he knows who the defendant is and he and there's the affidavit in case he didn't communicate given the record indicates that he increased over the course on status or franchise is now in litigation that was the most you know found to be not you know it was from being consistent and you're saying this is