illinois law an account stated arises when one party renders to another a statement of account and the latter party acquiescence in that statement account by failing to object to it within a reasonable time that we submit is what happened here the evidence shows after how long of silence so we think the evidence we the evidence drawing all reasonable inferences in our favor would show about eighteen months of silence then or now silence since the last statement request for payment that's fifteen years so that if that is true ok so if i if i send you a you mr shredder you owe me five thousand dollars based on our transactions that occurred fifteen years ago and you remain silent because the debt is clearly bare barred by the statue of limitations your theory is that i could sue you on an account stated theory because you react we asked by failing to hundred dollars or time barred bills will just send up blizzard of new five hundred dollars which will be ignored and was the statute of limitations is gone well it may be that the statute of limitations will not be gone because of that i think you know we have a rule in this circuit that you can't send you can't be done people for time bar debts but on this view if somebody doesn't respond to a dunning letter the debt isn't time barred then i think the fact finder ought to sort out whether there was a meeting of the minds and that's really all that we didn't have another theory you want to share with us sure even if the court disagreed with us on the account stated claim at the very least we think that the claims that were first build in two thousand and eight that summary judgment was not appropriately granted on those first bill claims  or deposits for the benefit of the bank well that's correct so the collateral had was applied to those new new claims from i think again there are questions of fact on where the collateral was applied so i account conclusively shows either way liquidator have and i'm trying to think and i am willing to be educated about this but i'm trying to think on what a good faith basis liquidator could say we've got this collateral we've got this series of claims some are clearly time barred way too late to pursue them we threaten litigation back in the ninety's and then drop the matter so i'm going to apply the collateral to those time barred claims and try to grab fresh fish for the new claims that's  of thirteen eighty seven of the record the quarter share and first surplus it says when the reinsure fails to fulfill its obligations that the that the collateral the the amounts that are being held automatically limitations is a rule that bars lawsuits it is not a rule that bars other remedies other debt collection remedies and so here applying to the old time our debt would be legitimate and it would be in good faith for at least those two reasons  q i do want to address and since i'm on the funds withheld there was the point made by the just report that this was not sufficiently developed the funds and health plan was not sufficiently developed i don't think that's right for this reason claims do have balance is owed because the collateral should be applied to the older debt so i do think that it would be a rather harsh forfeiture rule to say that this one's withheld arm is not properly before the courts when the moving party on summary judgment introduces in a footnote it's something that is primarily concerned with the statute of limitations but what it is is a contract altering the rules because it says the mutual debts and credits have to be sorted out and then the balance shall be played and then and then and then what will be paid will be on the balance only in mandatory language so as was often the case in insolvency and in liquidation what that statute is saying is you need to alter the normal contract rules the portly account billing paid by the end of the next quarter that alters and you have to wait nothing can be paid until the mutual debts and credits are set off do you think that begins a new time i think it prevents the time from ever starting because the breach doesn't occur until after the meucci the process of settling mutual debts and credits just and sold these debts to units on what was the three cents on the dollar that's close but it's a direct answer your question directly what is the effect that i think i would have to say that's probably going to be admissible under an exception to the rule against hearsay a party opponent or our predecessors that could be something that might be inconsistent with the idea that with our argument you're understood you to be claiming that there's a well understood practice within reinsurance along these lines so that the normal rules don't apply but it was so well understood that the liquidator didn't understand  week there was custom and practice evidence and i will concede that the liquidators conduct should go into the balance and if we can have a trial while we can determine what the what the better view of the custom and practice was but though the fundamental point here i think is that this illinois insolvency stet set off statute has to have some meaning it ought to mean something and if it doesn't delay the quarterly count billing provisions of the contract i don't know what's left of it be all bills must be noted at the very end at the very tail end of a receivership the no that there is no illinois case law on that but i don't think there's any illinois case law on that either way there's very little capable of interpreting illinois law and on a question that the illinois courts have not reached that was that brings me to another point on this argument which is it was a reason given below that we didn't cite any case law that had accepted this approach that that was a forfeiture but you know there is not a lot of case law either way these insolvency situations do not appear to arise all that frequently where the particular statute of limitations issue that we're arguing here comes up so it's true there was no specific case cited that has adopted this interpretation of the only insolvency set off statute but it's not like there was a wealth of authority interpreting this or a lot of other  every dollar it issue was billed eighteen to thirty years ago every dollar issue was due and payable eighteen to thirty years ago so what do we do with this or human about things first bill  reflects those credits and debits during that fifteen year period what we know is that the liquidator assessed the set off and that number pine tough or plaintiff purchased the assets as when was that two thousand and ten november so what that reflects is that the actual set off being done was done on the fifth and the ninety three through ninety nine billings they then sold that a meanwhile pint up actually knew that these claims are time by the liquidator after do digital diligence told them that these claims were time bark and then at banco objected to the claims now with respect to this doing from one nine hundred ninety three ninety four ninety five two thousand two thousand and ten the complaint the discovery we don't even have one single number that would support the count statically it's all different illinois law and it's incorrect now with respect to the idea that the set off provision allows these types of claims to be approach rated you know and after that it over the mere fact that this reinsurance position or the reinsurance of the see it when the liquidation does not affect how the party is treated the terms of the treaties we know the liquidator standing in the shoes applying to issued quarterly billings from ninety one through ninety three we know that the terms of the treaties contemplate insolvency there's nothing in either the treaties of the conduct of the party or statutory law or case law for that matter that would change the relationship when the student goes into liquidation the liquidator takes over and proceeds to do business and wind up the students affairs wanted to take any one of those demands from the liquidator birth counts and you could say one of those one of those are counsel that be five years from that we've got those demands in ninety three ninety five so they still have five years  july thirty one two thousand and eight billing i think it's best looked at as just a kind of update what has happened since the last bill there has been premiums that have been president there have been claims that have come in and it's saying all of the things that have happened since we sent you a previous bill it is not and certainly is not conclusively as a matter of law and summary judgment a definitive statement of which of the claims the collateral has been applied to and i did not hear in my colleagues argument any dispute that the treaties if we look at the treaties and i cited thirty seven in the record as an example that the funds became the property of pine top when bango failed to fulfill its obligations so that is that is a strong evidence that these newly built claims still have some balances owing on your theory is that the creditor can sit on the claim the money goes away and i'm not but i'm not going to bill it until nine or ten years after its bill going well well so i would just speak the premise of sitting on it because there was a lot happening in that time period as we lay out in our briefs working out the higher priority claims to what we call the direct claims in our brief and before the liquidator could get to the retrocession of it has not been disputed here that those first build claims from july of two thousand and eight were timely and there was no statute of limitations claim made as to those claims the claim rather was that there was no balance oh that that that there was just no evidence that the evidence was conclusive and was sufficient for summary judgment that there was no balances due on those funds withheld and we just think that's not the case based on the treaties won and based on the well settled law that skepticism on it but illinois law does recognize that when you have an account stated it's an independent agreement it's a new agreement it arises as a separate exactly it's an agreement what what you have  well ok i'll prepare much you're going to get a judge campbellton statement for additional services in fact everyone in this work for a sequel be getting a statement from george hamilton you'd all better respond or google agreed to pay him i see my time