of deposition transference that are not in the record it's not proper to allow the bay to rely on factual assertions that are not contained in the record there were not available to the trial and those portions or to knowledge of sufficient facts but the banks payment of the funds amounts to bad faith and then the case law goes on to say in determining whether the bank acted in bad faith the courts consider consider whether it was commercially unjustified for the bank to disregard and refused to learn readily available facts such that it was bad  remain passive so judge ross even referred to it as the bank had to do something active but that's not the case because it is enough for the bank to have remained here the bank improperly remain passive a connection with opening the subject account based on the facts that it knew or easily discovered the bank admitted in its motion for summary judgment that in that with a personal banker told that personal banker that he was in a partnership but that we had broken up that company and that he was in the process of putting together a new company but mr pat  the banker that he had the paperwork had not finished with the state five but that he was going to do that the banker then printed a report from the secretary of state website resolution signed by the pad me guess for p p a but the bank at the time the personal banker didn't even notice that the corporate names in the f b i m and the corporate resolution were different so you have that discrepancy you half the print now and you have mr have mika's statements that he hadn't yet finished the paper now in light of all that information all the bank needed to do was ask for one more thing one more bit of information you have me some proof of the actual corporate existence  remain passive we contend that they could have done something but at a minimum it should be left to a finder of fact to determine whether the bank's conduct was bad  but the case was clear that this defense can only be used where an individual misrepresents his own identity it does not apply when an individual falsely represents his authority or status as an agent and that's among other places from the advocate health vs bank one three forty eight eleven there are seven fifty by the bag has never pointed to anything in the record or anything else to suggest that the have mika's went into the bank when they open the account and misrepresented their own identities thus the impostor defiance for the fictitious may have been able to if you will but the bank has also relied on section three for twenty three dash or twenty of the u c c and again our position is there are at least back questions regarding a professional business that's not now that's a fact question whose checks are we supply information in the record to the to judge russy that in the prior proceeding between mr rigor and make papeete that judge a weary had found had made a finding to the effect that the checks had belonged to l o c but in any of that there is a significant fact wash in as to who they did more they open the door they started down the path they the bank themselves went on the website and found it wait a second here's the corporate information for p v a l just be able to put the blinders on and just rely on the two bits of information the f b i and the corporate resolution but if that is the hades once they start down the path and open the then they have to do something more because the imposter defense says it's not just the fact it's the facts they know and that are available to them at the point that they open the door they know facts they know hey wait a second i then they have to do something and that's why i believe that judge rusty was wrong to say that they can remain passive there that that that the yes that they can remain passive and that they have to actually do something active the judge i would suggest they did something active they went and found some information they listened to what mr patten he had to say when he was opening here so i think that there is a basis at least for a question under the he receive them in that asked to be an agent is enough and like waste the last point on the double recovery there is no basis to find summary judgment on the basis of the  case before judge a lyric also dealt with breach of produce your duty violation of the illinois limited liability company act breach of contract and so again at a minimum there is a fact question as to whether those two sets of damages arise at the same injuries and would be barred by the contribution for all of those reasons we would respectfully ask that the summary judgment entered by the trial court be reversed and this and he correctly entered summary judgment favorable playing for a bank because simply by i didn't do anything wrong or just rossi i fine the bank had to do something more in order to cross the line you need active some active wrongdoing maybe not a lot but you need something on the part of the bank and the plaintiff in this case it's been four years he discovered when you find that there was no something more there was no evidence that was uncovered by the plaintiff that was is the bank representative who came in and testified that these are the corporate documents that are customarily required of what request with opens an account namely the resolution which provides three things it provides an affirmation that the automation technology to open the account the p p a think in fact the evidence is just the opposite they got a corporate resolution a driver's license they interviewed the president of this corporation him into the office and was interviewed by  in fact she even said you know business owners who come into our bank frequently have multiple accounts it's not uncommon to have it or the miss o'neill customer that will have two or three corporations with similar names and each one can and can open a separate account and i would point out in this case that the bank had no banking relationship with mr meeker or with professional business commission technology old city or the pet because none of these individuals were known to the bank and that's a significant fact because i think in a number of the cases that we cite where you know banks were charged with some knowledge the banks had prior relationships work steps of lending relationships with the customers and that wasn't the case here s in the process of setting it up that it doesn't appear again it's not that big of a deal and it certainly wasn't a red flag that would put the bank on notice that my goodness you know we need to do further investigation just simply isn't the case that opinion the court stated that even though the south bank had conversations with and possessed documents that show the producer relationship between time savers and its shareholders and in transfers of money to that deposit or there were no facts th this goes to the something more that the judge rossi was referring to there's got to be something that that triggers the duty of the back to investigate further and historic facts about in this get to the point of also then seems to term eat or l l c appear or that you need it then you presented with a particular document other than the corporate resolution which that's the exercise of corporate authority right there but there is no requirement that a person comes in work but that would have been sufficient and officers of p a technology and there's nothing unusual going about a small business owner having an interest in two or more his duties with similar names there's no evidence that was offered that was the bank on notice that do it none of  bank based on some general know of the customers should have done something more in those circumstances that's not what we're saying we're saying here this bank is something timeline i used to have this business but we're breaking that up and i'm going to be starting a new i haven't finished all the paperwork yet but here i haven't finished all this paperwork yet to  why don't you go ahead and open it up in this name anyway the facts are whether they could have done it this is so proprietorship or it's your right but what they did was they set it up as a corporation they set it up in a confusing similar may it provided the vehicle for mr paprika to accept the checks in his capacity as a member of the yellow sea take them to the bank deposit them into an account set up in a confusing leave similar name they deposit it allowed somebody who was not a corporate entity an individual that is a corporation allowed them with a check in with that and i wouldn't so i don't understand where you think i would suggest if you have heard your honor that just opening you did it in the name of professional business automation technology would have been inappropriate in light of the information that they were provided all right and that is that mr penn they went to the bank went and found this information on the website found this other entity then they have the testimony or the the statements from  haven't actually sent this business up yet but i'm going to do so that should be the red flag that's the information you can't allow a bank to ignore so whether he's going to set it up as a as a sole ridership or something else that's and they would have done that then neighbor had liability or any of these checks are made out all things but i don't i mean it's certainly not i am for there to be different use of the same name there different legal have common ownership with confusingly similar names for exactly this bill so they could not have done mr pettigrew could not have come in and set up that's why he got rejected he ate never could have been accepted as an entity in illinois because it was a confusingly similar name in the business book rationing provides for exactly this and so our point is the same thing and again at a minimum i don't have this corporation but just go ahead and let me set it up here's a resolution of a corporation that doesn't exist i mean you can't let them it's absurd to say well you can take all this information in but just close your ears and don't listen to it rely on the