background very brief then argue on the dismissal of the complaint and then give an argument on the denial of plaintiff's motion to amend the dismissal order so as to smith's without prejudice just as a very brief background there were three prior foreclosures all between these same parties all were based on a declaration of default under paragraph nine a one of the mortgage at issue which is the failure to pay principal failed to make their june th teen tax payment and their insurance payments for hazard insurance on the property the plaintiff made these payments on the defendant's behalf in an around june in december of twenty eight teen upon dismissal of the rd foreclosure which was again based on principal and interest payment default the circuit court's order dismissed saying that rd foreclosure was with prejudice and the practical effect it essentially gave the defendants a loan free home now they still owed money on the loan but the practical fact  was that the the note was an enforceable in a court system does not mean that they did not owe the money just meant that plaintive could no longer enforce that that  long so again the practical effect is that as long as the defendant's at that point after the rd foreclosure was dismissed the practical effect was as long as the defendants did not sell the house then they could live the  loan free they simply needed to pay taxes and insurance they didn't even want to do that so they wanted what was essentially a free house and they wanted someone else to make their tax and insurance payments now move on to my st argument and that is that the default alleged in this complaint is not the same as the prior de thoughts which i wrote extensively about in my that is that allows the plaintiff to declare a default i'm sorry it allows the mortgagee to declare default for failure to make tax insurance payments for failure to reimburse  those tax insurance payments made on the mortgage or his behalf now the st sentence of defendants a pelleas brief says the president mortgage foreclosure lawsuit is the th lawsuit against defendants based upon the same default that is a fundamental misunderstanding of plaintiffs complaint it is not based upon the same default as the prior three foreclosures it is based on a different date fault which is a separate  separate grounds in the mortgage but also separated by time in that it came seven years later and after all of the prior foreclosures had all been dismissed additionally and eighteen tax and insurance payments that were due which are the subject of this instant complaint that could not be accelerated previously in the same way that principal and interest payments can be accelerated when a default is it cleared for failure to make principal and interest payments the plaintiff does not have the ability to accelerate tax payments or hazard payments they're just simply not due yet when the plaintiff in or any plaintiff in a foreclosure accelerates the principal in interest payments and accelerate the loan that is a different sort of amount d because the full amount is being called do the plaintiff cannot call the full amount of taxes due for you know the next two years or four years or ten years or forever it is a legal and logical impossibility that this instant payments were not yet due the defendants in the circuit court and in this court have put a lot of emphasis on the transactional test in the river  park case which was also confirmed in the kobo case which is more recent river park versus city of highland park and st midwest bank vs cobol that transactional test puts a lot of emphasis on whether the facts that gave rise to the claim are related in time space origin or motivation and the plaintiff is arguing the facts of this should say the operative facts which is the term that the river park and kobo cases kobo courts used the operative facts are different here because they  arose out of the failure to make tax and insurance payments in two thousand and eighteen those payments were not due until two thousand and eighteen they could not have possibly been included in the prior complaints because they were not yet do the plaintiffs had not yet made those payments on defendants behalf it's a it's a crucial difference to note because it's very different from the acceleration of the full amount of the loan   there are new operative facts and the new operative facts are that the taxes were due in june of two thousand and eighteen and the plaintiffs well defended did not pay those and the plaintiff had to pay  them on the defendant's behalf in order to keep its lean viable the the river part case held that claims based on different factual scenarios are not barred by race tata but instead different theories of relief based on the same facts are barred by race to the kata so we have kind of an opposite of the river park case so in this case the facts are different but the the cause of action is the same it's a foreclosure of a mortgage but the facts that gave rise to that claim for foreclosure of a mortgage are different the river park case had the same factual scenario but the plaintiff was trying to assert claims on different theories of relief and that's that's again crucial also the prayer for relief in the form foreclosure complaint it indicates the amounts they were currently do and the plaintiff in those three prior complaints did indicate amounts that were currently do include attorney's fees costs expenses and advances if any but if you look at the prayer for relief in each of those three prior complaints it does not request tourney's i'm sorry did not request the the tax and insurance advances it simply states in the information that is contained in the form complaint just as it states the legal description and it states the date of the mortgage there's a lot of information that is given in the form foreclosure complaint  but the prayer for relief should be what controls and the plaintiff did not seek those prior tax and insurance amounts and is prior complaints in any event even if it's held that it did somehow which it didn't but they certainly the plaintiff in those prior complaints certainly could not have sought the amount due in two thousand and eighteen for taxes and insurance and the amounts that point it paid on defendants behalf in two thousand and eighteen in those prior complaints because they were not yet do we're not we're not asking now for the pre two thousand and seventeen tax and insurance advances we are asking for the post dismissal of the  there's something to be said about the concepts of debt collection versus lien and forstmann the plaintiff as i mentioned at the outset the plaintiff is still owed the money but the plaintiff cannot enforce the debt the play of cannot seek the money that is due on the note but the plaintiff is still a lien enforcer the plaintiff still has a lien and there's various promises made within the mortgage that the defendants have not kept one of those being that they did not make their tax insurance payments in june of twenty eight t g the mortgage is not void and the mortgage has not been released which is what the defendant's arguments would have you believe the obligations contained in the mortgage continue despite the fact of the pla cannot bring a foreclosure on the debt and the plaintiff cannot speak the amounts due for principal and interest the circuit court when the circuit court dismissed to the rd foreclosure did not somehow in some way issue a hold harmless or release or something between these parties in the future that's an extraordinarily broad interpretation of the dismissal order to think that and that's what the defendants are arguing here  saying that they will be they will be stuck in endless litigation forever well if they continue to fail to make their tax insurance payments then it's rightful that they should continue to have you cases brought against them there are several different promises made in the mortgage for example another wanted to do on sale clause if and that's generally in most mortgages if the mortgage or attempts to sell the property then they are in default without the lenders or without the mortgagees permission if the defendants were to try to sell the property tomorrow i don't think that there would be a dispute that the pla could declare a default there are various types of defaults in the mortgage one of them is that the borrowers must make tax insurance d payments and then reimburse the plaintiff if they're made on the defendant's behalf  to hold otherwise would mean that the the mortgage and the promises contained therein are of no effect whatsoever now that the plaintiff's rd foreclosure was dismissed with  prejudice you know the mortgage is not released and the promises contained therein are still effective the defendant still has obligations related to the mortgage i yes they were based on the failure to make principal and interest payments that were due at the time of those complaints and one for the complaint that's an issue now was premised upon an alleged default in the payment of taxes and insurance correct that is correct if the tax is an insurance only we are saying that that is the basis of why the single we file will does not apply here that is correct because this instant complaint has raised a new set of operative facts that could not of obviously legally and logically be contained in the earlier actions because it hadn't occurred yet that your position that is that is our position it is it is impossible case how do you distinguish this situation from what the supreme court decided and told well so it's easy and coble over two cases one was based on a note and one was then on the mortgage in the note so the plaintiff in that case in the global case had already brought a claim on the note and then tried to carry might be vice versa it may be that they brought the foreclosure with a deficiency request and then brought a claim on the note i don't remember exactly which order it occurred but it was the same default and they were attempting the coble plaintiff was attempting to to have it both ways kobo said no you can't do that you can't refile these same things based on the same facts so here and in our case in the instant case there are different facts at play and the new facts that occurred after all of the other cases had been dismissed are that the defendants failed to make their two thousand and eighteen tax and insurance payments there was a lot lawsuits to adjudicate right under the particular instrument at issue here in other words the mortgage isn't that what we're supposed to be looking ass yes to a certain extent that that only goes so far while we are readily admitting because it's obvious that we are suing under the same instrument it's not the same default  the default was from you know in the other cases was from seven years ago and the borrowers that are their mortgage orders readily admit also that they haven't made a payment since that time principal and interest payment or otherwise but currently after all of those cases were dismissed new facts arose which is that the borrowers did not make their tax insurance payments in twenty teens so after all of those prior cases were dismissed there were new facts which is the it's what the called the case and the river park case both turn on is whether there are additional facts the new facts that give rise to a new claim and we're arguing here that there are new facts and that a new claim has emerged and other violates the law as well doesn't violate the single refiling rule to have separate causes of action based on separate facts it just makes sense that in any area of law not just mortgage foreclosures but in any situation where you have new facts then they should give rise to a new claim  monthly loan payments but those as growth those payments as far as they're far as the prior complaints were concerned they only went through the end of the prior complaints so those payments were due at the time and the advances for taxes and insurance were due at the time of the original default and they were due at the time of the two thousand and fourteen complaint and the th in complaint so those amounts  route up until that day that the complaints were filed and they would have been due after the complaints were filed so for example in the twenty four team complaint there would have been additional amounts do after the filing of the two thousand and fourteen complaint for taxes and insurance because the two thousand and fourteen complaint may have gone on you know ability geisha may have gone on for two years so the plaintiff is entitled if it made tax insurance payments during those two years to request in its judgment motion and its affidavit the amounts do over the those two years after the complaint was filed but only up until that complaint was dismissed so the plaintiff could not at the time it filed a prior complaint he could not request an infinite number of tax on the chairman surance payments for the for the next one hundred years because they weren't do yet they were due at the time of those complaints and they were due at the time the plaintiff moved for judgment and one of those complaints so the plaintiff cannot request and cannot be entitled to an amount that is not yet due for taxes insurance and that's why distinguish  accelerating the principle and interest the principle and interest is due only because it can be accelerated is that right because obviously the principle and interest payments you know from one  year i mean you know from a certain period of time argue then but they don't encompass the principal in interest payments in the future unless they're deemed excel rated that's correct and that's the that's correct that's the unique character the unique character of acceleration it allows the plaintiffs to bring the full amount of the loan do but that does not apply to the taxes and the insurance payments due it applies only to the principal and interest amounts that are due so the plaintiffs cannot accelerate amounts that are not yet due for tax and insurance but the plaintiff does have the ability under the terms of the mortgage t accelerate the principal and interest payments that are not yet two because that's a finite amount we can determine what that amount is and that amount is actually due at the time of the complaint and at the time of judgment  that amount is due the amounts for the two thousand and eighteen taxes and insurance were not yet due at the time plaintiff filed his prior complaints and they were not yet due at the time plaintiff move for judgment in the one prior complaint so i'm not saying that there is not a forward looking analysis at the time of the complaint that the plaintiff is intitled to request the escrow advances that are paid on the defendant's behalf after a complaint is filed but before judgment and only up until that point the plaintiff cannot request years and years into the future so now what has happened is the  complaints were dismissed and ultimately dismissed with prejudice and the obligations under the note still remain but are unenforceable but the obligations under the mortgage still remain but  q i understand that i don't have any other questions thank you you mentioned that the plaintiff can't accelerate the payments is there anybody who can no no and why is it that well so that's that's the logical argument that i made that it's simply we don't know if those tax payments will be due we don't know the amounts of those tax payments for all we know that know what the assessments are you won't know what the rates are but we certainly didn't know in two thousand and twelve for example what that because i think you're saying something you said previously and the next thing i'd like to address is it would seem that if in fact there had been a judgment o foreclosure a judgment of acceleration that that judgment would or would it not include the tax payments and the insurance payments up until today state assuming that you and i've gotten the judgment back when you file or the st complaint was filed it would have included the amounts up until the judgment date so the taxes that were paid between the complaint filing and the date of the judgment would have been included in the judgment and if that what and why wouldn't these be included in that judgment well because the cases were all dismissed so the facts the fact and the reality is that those cases did not make it all the way through a final judgment a judgment a foreclosure that is and they were just missed so it's just the reality of the situation is that you keep saying reality i would like to look at it slightly different and call it a timeline and there's timelines here there's something that's been bothering me or at least a crit conundrum and that is how is it that a an acceleration clause is declared and the case is not unsuited or dismissed without prejudice how does that acceleration cause remain intact and so far as its enforceability if there is no declaration no finding no judgment there on how is it that acceleration clause supposedly survives in order to create the fiction that this is the nd or rd filing decelerate that's that's a controversial topic not just illinois but particularly florida and other states the whole d concept of the seller ation that's not really what's at issue in this case though because we're not arguing that the loan was not continually accelerated or that it was decelerated procedurally you're making an argument based upon the acceleration clause and its downstream effect such that  attempting to get around the acceleration clause which supposedly through a syllogism concludes with the statement or the holding that because of the acceleration cause the legal fiction that when you file the next suit or the nd suit supposedly because you accelerated the clause previously now is the same identical factual transaction and my point the us how is it the same factual transaction where there was no finding about any transaction and the acceleration clause is not based upon the alleged facts that you're going to prove in order to obtain a judgment well it's not enough to say go ahead sorry the acceleration clause is going to determine the level and measure and nature and extent of your damages it's not going to determine the liability so the acceleration amount is not necessarily different or the same i should say it's not necessarily the same in  subsequent filing so it could change for relief which is that i don't have to go through this every time there's another payment but the real question is how is it that ratio to kaba supposedly applies when there was no judgement whatsoever and supposedly it's a new set of facts refute a codified ever to a new set of facts well so that's what i'm arguing judge is that it doesn't apply here because we do have a new set of facts and in it in other cases in the prior foreclosure for example the rd foreclosure that was dismissed with prejudice raised to the kata applied because the amounts were the same and the default date was the same and that's what the circuit court judge held and we did not appeal that the facts were the name because of the the the same  amount was do nothing had changed and here what i'm arguing is that something had changed we're not seeking the principle on interest there's a new default because of the lapse of time and because the lake county treasurer called an amount due for tax and insurance and because the insurance company billed us for insurance those are new facts so the excel aeration it's not necessarily the case that there are new facts for example between the two thousand and twelve case in the two thousand and fourteen case it may have been that they were the same amount due there would have of course been new tax on insurance payments due to the same principle in the same interest amounts were due but you're you're you're exactly right that it's impossible for race to the ca to apply if facts are different so in this case we have new facts and race  does not apply because of those new facts and that's set out in the kobo case and in the river park case if you read the circular case i am not familiar d with that judge ok  i have no further questions any other questions based on the questions that have been asked for me now ok thank you thank you counsel you may proceed application of the transactional test to a foreclosure lawsuit the transactional test treats separate claims as the same cause of action if they arise from a single group of operative facts plaintiff in this case essentially asserted a modified theory of relief instead of suing on the accelerated note as well as the mortgage amounts due as was done in the prior three foreclosures the theory of relief specifically alleges damages of only certain mortgage escrow mts claimed as on pay but as the trial court correctly found this is simply a different theory of relief for the same cause of action for closure of the defendant's mortgage seeking the same remedy of foreclosure  and judicial sale of the same collateral the mortgage real estate in the instant case the instrument issue and all four foreclosure actions was the defendant's mortgage instrument the trial court correctly relied on the supreme court's decision and correctly applied the transactional test analysis utilized by the supreme court in the river park case and the plaintiff complaint was barred under the single refiling rule of section thirteen t seventeen plaintiffs predecessor an interest wells fargo bank filed to mortgage foreclosure lawsuits against the defendants these st two lawsuits were essentially identical in all the case number wells fargo then  for whatever reasons voluntarily dismissed these st two foreclosure lawsuits without prejudice wells fargo then sold off the defendant's mortgage a note which eventually wound up in the hands of the present plaintiff wilmington the present plaintiff then filed a rd foreclosure lawsuit against defendants but this time slightly changed the claim default reality had changed however no further payment had been made nor was the loan ever modified or reinstated by the parties the rd foreclosure was dismissed with prejudice by the lake county chancery court as a violation of the single refiling rule plaintiff didn't appeal this dismissal with prejudice presumably awaiting the outcome of the supreme court's pending ruling in cobo after the supreme court affirmed in cobol that the single refiling rule doesn't apply in foreclosure cases just as it doesn't all civil cases in illinois plaintiffs nonetheless filed this th foreclosure action plan its main contention is that the trial court incorrectly dismissed this force lawsuit as barred under the single refiling rule essential plaintiff argues that it has brought a different cause of action sufficient to avoid the already administered bar imposed by the single refiling rule but this is not a different cause of action it is simply a slightly different theory of relief and stead of amounts for principal interest taxes and insurance this th complaint limits its amounts thought to certain astro dances for taxes and insurance however the foreclosure statute provides that where a plaintiff follows the statutory short form complaint template a complaint is deemed and construed to also plead requests for its judgment to include all amounts due for advances for taxes and insurance whether then do or critically whether coming due essentially the deemed allegations include a request for an accounting of all such as girl mountain dew and all such as girl mounts coming due in the future all three prior complaints as well as the instant complaint follow the statutory short form template and the plaintiffs admitted as much in its motion to reconsider that the st two lawsuits here did follow and adhere to the statutory short form complaint template the default now claimed by plane this is not a new or subsequent default it is the same default that occurred in two thousand and eleven when the defendants brown able to make their mortgage payments the defendants mortgage payments were not only payments of principal and interest required under the note they were also payments into escrow to cover taxes and insurance required under the mortgage and that's at section two of the mortgage there were no separate defaults under the no mortgage there was a single default the river park transactional test clarifies the two thousand and eleven default in the mortgage payments as the single operative default in this case the river part factors demonstrated that these defaults really arise out of the same group of operative facts the facts are related in time in origin they form a convenient trial unit and also conform to the expectations and understanding of the parties  both the lender and the mortgage itself that section two actually require that the defendants make a single unitary payment for both note amounts and mortgage escrow amounts and the defendants did make that single payment until the time of their defaults in two thousand and eleven as the foreclosure statute provides and as chancery courts routinely adhere to these amounts or convenient trial unit foreclosure judgments almost always include amounts for principal interest taxes and insurance whether amounts coming due prior to the filing of the suit or whether amounts coming due up into the time of the judgment being entered defendants argued the river park factors in the motion to dismiss but critically the plaintiff did not address the river park factors in its response to the motion to dismiss essentially there was no basis presented to the trial court that would have permitted it to deny the defendant's motion to dismiss while the plaintiff belatedly attempted to address the river park factors in its reply to the motion to reconsider the dismissal this was simply too late and the plaintiff failed to time raise the issue or preserve the issue even in the its appellant's brief plaintiff sidesteps the river park test and the factors to be considered and simply asserts in the conclusory matter that these must be new operat facts regarding the nd issue presented on appeal while the motion to reconsider the dismissal requested leave to amend leave to file an amended complaint was not requested in their response to the motion to dismiss leave to amend was only  requested when it was again too late in the plaintiff's motion to reconsider after the two hundred and sixteen and nineteen dismissal order was entered that was a final order and there is no right to amend a complaint after a final judgment moreover amendment is not appropriate when there is a dismissal under section two thousand six hundred and nineteen dollars there was no amendment that could cure a violation of the single refiling rule here nor did plaintiff propose any amended and you mended pleading that would have done  so plaintiff actually never provided a proposed amended complaint and it forfeited the issue the factual reality here never changed the defendants were not able to make their monthly mortgage payments and defaulted starting in two thousand and eleven and after that no further payments were made the loan was never reinstated nor was there a modification a new instrument between the parties pursuant to both the mortgage requirements and the lenders requirements their monthly payment consisted of principal interest taxes and insurance it would not have been possible nor would the lender have accepted payments only for principal and interest they need to be a unitary payment if the plaintiff's position is adopted it would be contrary to the coble decision but it would also be impossible to limit the rationale to just this case or foreclosure cases and general debt collectors like the plaintiff here would be free to purchase default to debts and file and dismiss lawsuits without limit as long as they can allege a supposedly new or subsequent default under a contract illinois law doesn't permit people to be subjected to multiple and successive lawsuits over matters that could have been decided in the st two lawsuits plaintiffs rationale essentially requires that the single refiling rule of section thirteen dollars to seventeen dollars is a dead letter there will always be new defaults under a mortgage as real estate taxes are due twice a year and default for yearly taxes or insurance later coming due but the transactional test under section thirteen thousand two hundred and seventeen dollars is not a dead letter in foreclosure cases or collection litigation that was reaffirmed in cobo there has to be an end to litigation both to preserve judicial resources and time and to protect consumers from endless repetitive and financially draining litigation that can simply be filed smashed and refiled ad in the trial court correctly found plaintiff was not entitled to a th bite at the apple to conclude defendants respectfully request that the court affirmed the dismissal by the trial court thank you thank you justice hudson you have any complaint were not of money principal interest at that time is that correct i believe that's correct yes and you allude to receiving cabin station in the earlier cases that were filed i would then be able to seek statutory short form template it's allegations are deemed and construed to essentially include an accounting for all escrow advances taxes insurance whether having been come due already lawsuits requested advances but who could say for certain whether they would have actually taken a judgment for astro advances but the statute already provided for that that was something that complaint was deemed to include even if the plaintiffs had not specifically requested it so that statutes that work as a practical matter how do you receive reimbursement for something that hasn't happened yet i understand your concern the conceptual theory you're advancing but how would one of the real  compensation for something that hasn't occurred that's provided for i think in the foreclosure process so that the judgment of foreclosure judgment would include all amounts then  due for astro advances after the foreclosure judgment those amounts can't be included in the judgment anymore if they are incurred or come due after a judgment but they can be they can be  accorded to be the lender in the order confirming the foreclosure sale so it's long as the foreclosure spending or you know prior to the final order in the foreclosure which is the order confirming the judicial sale those certainly you know they couldn't theoretically at the time the complaint is filed and they're requesting lost wages up until that point collect they could make an allegation that those lost wages have already come to but they certainly can include a request for future lost wages as part of the personal injury claim and that's routinely granted so essentially it's an accounting for lost wages coming due in the future in that state certainly provided for in personal injury because the argument here is that this is a single default there are essentially no no new operative facts there may be new facts there may be overlapping facts or maybe facts that occur just as a lost wages claim would continue to increase after the filing of the personal injury lawsuit they may change in the amounts me increase but essentially it's a single default and that's the default in the mortgage payment which under section two dollars of the mortgage is required to be principal interest as well as amounts for taxes and insurance that come due so that's that's the that's the defendants the borrowers obligation under the mortgage is to make that single unitary mortgage payment there's not a separate and different obligation to to make those payments as they come due as part of the agreements between the parties that was how those payments were to be made as that single unitary payment and that was the single unit or default that we're talking about here we're really not talking about a continuing course of conduct or any new operative facts again maybe maybe new facts or slightly different facts or increasing amounts but not new operative facts under the transactional test and so i don't know if this is unique to mortgage foreclosures but let me just give this one final example suppose you have a contract that runs for twenty years circular dispute about the satisfactory performance occurs in five years into the contract and the parties have another dispute and years into the contract aleisha and being held responsible for that breach right yes if under the transactional test it's considered to arise out of the same group of operative facts i think that controls the inquiry here  know the plaintiffs tried to ignore the transactional test and didn't really address the factors but i think that that's that's the difference here and that's the answer to that question and certainly if if those issues were examined under the transactional test that would provide the answer whether they are in fact a different cause of action for purposes of the single refiling rule for part of this transaction has that they stopped paying the mortgage after the th year there's nothing anybody can do that that's your  argument i'm sorry i don't i don't understand the question well if you're immunized that there's a default in five years a default in ten years and then there's one in fifteen you seem to be saying that the defendants are forever immunized from any  mortgage they would never be accountable for paying the mortgage again correct well in this case i mean any say that's correct that's their argument this case but as far as plaintiff's counsel mentioned there is the possibility of an entirely separate default that wouldn't be covered by the transaction test and you know for example i think that would reasonably be the due on sale clause in d the mortgage and that allows the lender to declare a default under the mortgage if there is a transfer if the if the defendants were to sell the property or transfer the property without the permission of the lender without notifying the lender and  without usually that permission is contingent upon paying off the lenders lien the lender doesn't want it not to stay there they could just live there and never make a mortgage payment correct why would they sell and theoretically yes ok that's all i have thank you forfeited there they've raised this this argument of two different default provisions in their reply brief on appeal so certainly we haven't had a chance to fairly address that and i believe it has been forfeited but to to address the issue i think that is that's demonstrated by the st two foreclosure lawsuits the default claimed there was a default for the mortgage payment for principal interest taxes and insurance for advances under the more so the plaintiff treated it as a unitary single default and that's that's what the contract provides for the contract essentially takes those two general different default provisions and adds a more specific provision that combines them into a single unitary obligation under the mortgage to make that payment the defendants would not have been permitted to separately pay the principal in interest and then on their own without paying into astro's separately pay the real estate taxes and insurance both the mortgage and the lender as a practical matter require that it be a single unit their repayment ok and then i just have one other question to be sure i understand what you were telling us about the fact that there is an accounting so if for example there is a complaint for foreclosure in two thousand and seventeen and the judgment for foreclosure in two thousand and the came between the dates of the judgment of foreclosure and the date of the confirmation of sale and the final orders in this case that those two thousand and eighteen tax and insurance payments would be counsel you said something about there were no further payments made by your client and i'm not quite sure what's the significance of that is it significant i think it is because potentially that would be a new operative fact under the transactional test the single refiling rule in just to just to clarify this the single refiling rule utilizes the transactional test it's essentially the same test that's utilized e i'm sorry but it seems to be absurd to me to say that your client hasn't made a payment since the last two lawsuits or three lawsuits were filed and that is somehow significant and then you suggest that it might have some transactional a back what transactional effect it would have other than the fact that your client payment you didn't say there were further payments correct there were no further payments after their default in two thousand and eleven which according to your logic was one  default even though it was a continuing all over time in other words it wasn't interrupted by a payment so therefore it's a constant continuing fault or is as race to the cause so it's not itself race judicata because there hasn't been a final adjudication it's the effect of the two prior voluntarily voluntary dismissals under the single refiling statute so it's the same analysis breach and there's a lawsuit brought on the note on the mortgage on all either and your client pays the amount it's all ing in order to bring the long back into good standing and then a year or two later another lawsuit is filed and your client pays all that is necessary to bring it to good standing and then another two years or six months later who knows it could be the next payment it's true that there could be a breach it doesn't happen the payment isn't made and you as the lawyer would get up before the court and say your honor i want this dismissed because this is the rd filing correct no i don't think so your honor and that's because reality had changed the loan had been reinstated and that was that was noted by the supreme court in cobo the supreme court noted in cobo that i didn't say anything about reinstated i said the payments were made and the c was not suited or just messed that's the criteria you use to establish the fact that the principle of race judicata which is not the one that they actually use but it is supposedly an allegory or a parallel for the relief that you're supposed to be getting is based simply on the fact that this was a rd filing it had nothing to do with the implications of what happened before and whether or not there was anything other than a so i don't see any difference in the logic in the hypothetical i gave you who cares if the loan is reinstated or not it's the rd filing who cares if the mortgage part made the insurance in the taxes haven't paid it's the still it's still the same default it's still the same breach so why doesn't it make also sense that in my hypothetical you're home  your client  an admission but the point is that the logic that you keep a spouse seeing is counterfactual that's the simple phrase to this whole thing you keep saying the things that s subsequent but the point is is that your argument at least in so far as justice is enough pointed out there are two types of breaches here and you've taken the two the princip and interest these of the taxes and insurance and you compain these things into i'm a lodge through a merger that there's no support for at least i'm not aware of any citation  two paragraphs i don't have any other questions are there any other questions and so far as the panel is concerned i'm going to say thank you   some of the points that mr mcgee made st that the plaintiff sidestepped the river park test no we didn't sidestep it it's that we cited the kobo case which  just confirmed to the continuing use of the river park transactional test so i didn't cite the one thousand nine hundred and eighty eight or eighty nine river park case because we have a newer one which is the kobo case and it held the same thing at the transactional test applies and that new operative facts will give rise to a new cause of action so i just want to touch on that very briefly also counsel said that illinois law doesn't permit people to be subject to endless lawsuits well yeah it does if there are endless factual patterns that continue to arise so if a person continues to do things that cause you know that  factually give rise to causes of actions then they can and should be sued multiple times you know if they're in seven car accidents they should be sued seven times i mean there's there's no end to the number of lawsuits that can be brought as long as the facts continue to change and as long as there are new factual instances that occur well then there are new causes of action and therefore litigation will go on as long as there are new causes of actions that arise from new facts also counsel mention the statue of limitations i just want to mention that the statute of limitations on a mortgage foreclosure runs from the acceleration which is why the statue of limitations isn't really an issue and i thought has been an issue in this case but it was mentioned so i just want to respond to it it doesn't the statue limitations should run from the date of the did not raise that nine hundred and eighty two arguments and that is forfeited that we didn't raise it in the circuit court but our complaint itself at paragraph k indicates mortgage or is in default pursuant to paragraph nine a two by failing for a period of thirty days to perform the obligations and security instrument so that we it was the basis of our lawsuit so i don't see how we could possibly forfeited an argument as to nine hundred and eighty two when it was the entire basis of our lawsuit  i think that i don't remember which of the justices was asking of my opposing counsel but there was some discussion of whether a new payment would be an operative fact and counsel the defendant's counsel so that yes it would be and i agree that if a new payment is made then there is a new fact that has happened whether that payment is principal and interest or taxes insurance whatever it is if a payment is made that's a new operative fact  this is this situation where we have the failure to make a tax insurance payment that's an operative fact also so this is a novel case there is no case that i could find and i don't think counsel could find one either that that has this tax and insurance default issue at the heart of the case so what we have to look at is whether the operative facts changed or whether they were sorry not that they changed whether there were new operative facts and there are and we brought a new case based on those operative facts those new operative facts i just briefly wanted to mention also that if the circuit court felt that the plaintiff failed to show that a different set of operative facts existed in this complaint as opposed to the three prior complaints then the circuit court should not have dismissed the case but instead should have given the plaintiff the opportunity to re e you know even allowing amendment is one thing but dismissing the foreclosure without prejudice is something different and plaintiff requested in his motion to reconsider that the circuit court dismissed the case without prejudice so that it could it could more properly plead the dates the circuit court took great issue with the fact that there were no dates in the complaint of the default well we can show that there court reversed the june th two thousand and nineteen order dismissing the complaint and remain and remand this case for further proceedings or alternatively that the court reversed that part of the court order which dismissed the complaint with prejudice and i'm activated that if the homeowner fails to make the entire payment for the entire lawn in the next month that they foreclose go forward or is he only required to make one dollar payment the loan is accelerated then the borrower or the mortgage or in this case is required to make the entire payment the loan has been called due in full once it is excel aerated so the borrower can reinstate and there's a there's a particular statute on reinstatement was suicide an apply here because they didn't do it but the the borrower can make the payments that  catch up you know that bring the loan current so if the borrower brings the loan current then they do not need to pay off the entirety of the loan in this case somewhere around two hundred and fifty thousand dollars you know they may they may have only been pas seven or eight months which could be twenty thousand dollars or so so they make that twenty thousand dollars payment then the loan will be brought current and there is no more default to that answer question it does to the extent  meaning that once it is activated it can be on proto nies or it can go back to a clear white instead of a white white and so d unlike sigler and some other cases that suggest that once the acceleration clause is made it can never be undone and that's in part why the legal fiction about why it's the same region and the same default and all that is based upon a premise which apparently has to have certain things happen before it's set in stone or it becomes the actual excel aeration