involves real estate located at seven fifty north clinton we had a bench trial and the issue at the bench trial was whether or not the plaintiff had a partnership interest with respect to both the ownership and operation of the real estate with richard or so senior officers mr urso passed away in april two thousand and three and it was our contention at trial that the plaintiffs and mr urso formed a partnership in one nine hundred ninety eight for the acquisition of the property and the leasing of  a bench trial when many days as a result of the trial before judge billick he made what i would call a split decision initially he ruled that although the plaintiffs proved that there was a joint venture or partnership with respect to the ownership of the property he ruled that the plaintiff could not enforce the ownership aspect on the basis that the claim was barred by fraudulent or improper conduct number one and number two by the statute of frauds the second part of the ruling which was favorable to the plaintiff was that with respect to the leasing operation of the property that there was a joint venture arrangement between the parties which was in force with respect to our appeal it goes to the ownership issue and there are two issues which are really the two reasons that the court denied the relief which we requested first issue is despite the fact that we prove in the trial court's own words and enforceable ownership interest with respect to the property with respect to the property did the court properly bar our claim on the basis that the on the holding of the ruling regarding the fraudulent purpose it's not clear to me and i don't think that the judge plight right standard that was an affirmative defense but it was an affirmative defense that the plaintiffs had engaged in fraud and in our view any time a party claims fraud that must be proven by clear and convincing evidence has been the law of the state for as long as there are cases and yet you have in the opinion a the court's decision says that the only inference that can be drawn from the evidence w that the plaintiff had a fraudulent or improper purpose because that the plaintiff was not entitled so it's you cannot reconcile clear and convincing evidence with that in there is no way that rod for improper purpose was proven by clear and convincing evidence is a clear and convincing standard to fly f if the nature of affirmative defense that's more of a state argued and it's a different standard i agree if it's a clean hands affirmative defense i believe it's preponderance of evidence but it cannot be a clean hands defense in this case because not unclean hands as an affirmative defense is that there was misconduct by the plaintiffs with respect to the defendant so in this case the affirmative defense that was asserted was not that there was any misconduct in the transaction between the plaintiff and the defendant it was that mr wo in putting together this transaction did not have the trust and title so to the extent that there was misconduct and i don't agree with that it was asked to some third party it was not  urso so it could not be unclean hands there that was not the finding of the trial court and i don't believe that was the affirmative defense that was asserted by the state so now we get walsh who testified and he testified that he not want to put the trust on title because it would complicate financing because he had judgments that he was paying that's a quote from his testimony that he was paying yet the trial court determined that the only only inference that could be  made from the evidence was that mr wolf did not want the trust on title in order to avoid judgment creditor's you cannot reconcile but but it in a fact it even we don't have evidence right now what what he was saying how much he was paying how long he had was taking to pay and when his name is a not tied up it prevents a creditor from having another a in either speeding up the judgement or having a more collectable judgment because there is a way to get liens or whatever and piece of property it appears it is not in this when you don't know that someone who owes you money doesn't own a piece of income producing property that it it has prevented too from that would have meant that the trust was a beneficiary of this land trust with metropolitan bank so it terms of a public record it would have made no difference to the outside world whether or not the trust was the beneficiary and named a beneficiary in the land trust document there is no creditor who would have the title so who would have seen so the idea that somehow a creditor was deprived of information or that was the purpose because the trust was not beneficiary of the land trust makes no sense because it would demand number two the evidence was on contradict it that mr that the trusts interest in the tax that he received income from the purchase of this property i didn't think that there were no he did not he indicated that he had an interest in the real estate or the trust did but no you're right there was no information on the income tax return about what the income was but there was disclosure that there was an interest in the real estate so that if a creditor her sock information creditors one of the first things you ask for is an income tax return so no credits her would have been deprived of information about the trust interest in the real estate if that was the case now there is no evidence again that any creditor was interfered with but if we go with intent the fact that the trust interest was disclosed on the income tax return displays demonstrates there was don't think that case has really any place other than it states in general proposition the other three cases in which the court found that there was a fraudulent purpose or improper conduct by concealing an ownership in real estate in each one of those cases there was a sworn statement by the plaintiffs the party seeking to enforce an interest in the real estate  either an admission that he was trying to avoid creditors or the case of a gun versus a baccy where the boy are just waiting why so in america national bank versus vincent says quite clearly the plaintiffs admitted that transfer of the property into his brother's name in order to afford creditors in handling the plaintiff's mid that he transferred the word put the property in his each one of those cases you have either and it mission you have sworn testimony which the court relied on to negate the plaintiff's point you do not have that here you have mr wolf testimony standpoint those cases don't apply and from the evidence from the record in this case there was no evidence to draw any one conclusion is the trial court said that that will acted with a fraudulent purpose quite the contrary he was paying his creditors whereas all these other plaintiffs in those cases family gone then since they worked so you have exactly the opposite here there is no society against us and my point on that and i'll address your question is that they never asked us to produce the income tax returns so this is not one of these cases where the opposite part and he testified that the parties had a partnership agreement with respect to the property or so was going to be on title and get the financing wolf was going to go shoot the purchase price but these terms the property of testified that he aided in collection of the rent when there was difficulty with the real estate tax so if you look at the law on what arrangement i don't know the details of that arrangement well yes you do from the record there so there's only evidence from the plaintiffs as to what the agreement was defendant never identified any other transaction in other words in these kind of cases maybe you have a defendant we said well no there wasn't a partnership it was a long it was a gift it was something they said nothing and the trial court recognized that and they asked those questions in the closing argument are you saying that there's a long no are you saying there's again no so what was it well the the testimony from about six witnesses including a lawyer was that there was a partnership to purchase the property operate the property you've got a written document signed by  which all of which acknowledges that the payment by the trust was a contribution toward the purchase of the property a term which the uniform partnership act recognizes as the capital of money that goes into the partnership the i r s laws also recognize that term as the payment of money for a partnership now that evidence was that there was a loan and that the money was supposed to go to award payment of the loan the grant was supposed to go toward payment of a loan so it's perfectly logical and consistent with the testimony that mr urso collect may i just one more minute or two more minutes i'll be very quick there's no fraudulent purpose that the cases don't reconcile with this there is no sworn statement that's inconsistent he's never taken a position in a different legal proceeding there is no admission in fact the only testimony on intent comes from wolf that he was paying his creditors there was no liquor license at issue in this case so the idea that somehow the liquor license the interest was sea old because of a liquor license doesn't make sense and quite honestly there is nothing illegal about having property hel for a partnership to hold real estate in the name of the partnership in the name of one of the partners or in the name of a stranger so there is nothing per se illegal about having title held in a  other than your own ok thank you thank you from the penitentiary and had two very large outstanding judgments against one in favor of the environmental protection agency and the other paper of this state of illinois for participation in so  written and if you look at the date on it it's written in february and that was months before this particular deal when really through closing and mr rivers has by that that was ever the first money that was returned back to them and even for the fifty thousand there is a fifty thousand but is this w f t crossed time and that is not a matter of public on public record no one would be able to see that particular child even if you  property and for the purpose proper purposes puts it out of his or her control and then comes back to the court in sixty eight of the court to help them get their property back after the fraudulent purpose is that humblest now it's been argued that there ursula's state owning one hundred percent of the property with that on one hundred percent of the power of direction in other words the state now has the ownership interest and it also has the break to receive trash and on documents but all the evidence that he was one hundred percent home owner and we have that that's that's all we have restarts attention goes under illinois law and order to determine intention you have to find certain elements in order to find a joint venture now with regard to the joint venture it has to show that there was a joint interest as pious a contribution of property financial resources knowledge and s venture now perhaps the most glaring at minutes here is the fact that the contribution was fifty thousand dollars of a total purchase price of six hundred twenty seven thousand five hundred dollars now fifty percent owner of the property entitled fifty percent of the rents from here on out this is a very valuable property and very valuable now with regards to the evidence that was provided  some friends of mr lowell who overheard him and are still referred to each other as a partner and talk about talk about a partnership what is missing from any discussion in this whole case is what the any evidence of anyone knowing that furthermore with regard to the key evidence of his friends just really briefly it's a small as a small and that stated that he wasn't present with regard to that particular two sunday meetings at that restaurant is far is the testimony with regard to good  but that's the attorney who is supposed to have represented the joint venture mr goodbar stated that he had no information as to the specific claim he doesn't know the duration and he didn't is somewhat of agreement rather than a partnership then the standard is very clear and that is and in this instance the ownership documents that complaint was filed well after the six month that line under the probate act and that that's all we will do for our attention and so and so in conclusion we're asking the court to leave the parties as it finds them with the state of richard her so in one expressed myself about that check the twenty five thousand dollars check the testimony was that was the original or his money checked it does say trust it was returned yet the trial court found based on but again we get back to what was the this case is about intent really what you talked about the whether there was a for intent to a fraudulent it ten in not having the trust that title and the same argument about the intent of the parties in this creation of a partnership and so the question is and i point this out  preponderance standard now inside what made that a clear and convincing standard was that there was a promissory note between the plaintiff and defendant and so the court found there was a debtor creditor relationship between the parties rather than a partnership unlike here now mr wolf whatever the world may think of him is a shrewd businessman he does pay seventy five thousand dollars as a gift there is no note there is no evidence that there was a loan there is evidence that on a document signed by mr hurst so that the wolf trust paid fifty grand as a contribution now that goes to the statute of frauds argument and it goes to the intent of the parties with respect to what this transaction and quite clearly not refuted a payment by the trust characterized as a contribution and signed by mr earth so we say it is a sufficient writing to prove intent to create a this is a document prepared by the lawyer for both parties for her so and the trust and it's signed by earth so and it says what it says but that and fence i got fifty thousand dollar contribution around to find for the purchase of a property that was heard ten times that ok but you have a course of dealing also you have the harlem property because it's relevant as a course of conduct as to what are the relationship there's no doubt these two words precipitated business people they were friends and the deal was that mr urso stepped were i disagree there's testimony by starkman and wolf that first so was stepping into the shoes of kravitz under the exact same terms cravats test write to them too and kravitz testified that he told the banker sloan nina that earth so was taking his place in the transaction and also relevant fact that the bank officer was informed of the trust interest in the real estate said i don't recall now this is a ninety day transaction and he said trial ten i mean that's understandable but the way it works is as i understand it you have testimony by a witness who testifies to a conversation the judge was able to assess the credibility and he's the one the judge who found that there was a partnership so there's no doubt that the trial  who specifically references to determining the credibility of the witnesses and wayne evidence found there was a partnership the only thing the trial court didn't do that you know disappointed us greatly was that the court didn't enforce that par ship interest with respect to ownership because of the statute of frauds and because of this project on purpose but when you go back and look at the record and look at the cases and look at the in the tent the evidence on  including this this letter from mr perkowitz in august two thousand and letters by mr wolfe in august two thousand you would have to believe that they created those documents after the fact to support the case that we had ten years later there was no finding that that occurred those exhibits were admitted into evidence and state mr urso we are fifty fifty owners on the property we need some information so that we can accurately prepare our taxes please give us that information that is not the conduct of a person who is concealing something who is trying to not act like a law abiding citizen if i can say that about m that is the conduct of a partner and it was not refuted miss themselves were not there is no response in the record which says you're crazy you're not a fifty fifty partner or something which would indicate that mr burstow disagreed with this position this is what happened here if mr urso was alive this case never would have occurred unfortunately he passed away i don't was not as it should have been in that void the estate want claim there was no partnership but trial court said no that's not what happened there are some legal reasons i'm not enforcing it but it happened in so what they're asking for is a complete church of the plaintiff's interest in the real estate on the basis that if a partner dies it goes to the survivor well that's not the law and never has been and in the face of testimony address on my initial time but when they brought up the trial court's finding of clear whether it was clear missing evidence and the finding of the existence of the joint venture it's issue actually stated partnership contributions had both of their names that's in sharp contrast to what we have here all we have here with w f t interview sion fifty thousand dollars and that's it so we would we would submit that alleging to be a landlord does matter  have is that the twenty five thousand dollars was written in february it was returned and the bar could not attach could not help who contributed that twenty five thousand and in fact the evidence at trial demonstrated that