you know we have a problem here in the biting up time so my suggestion is we'll give the plaintiff here a half an hour in bed to defendants in fifteen minutes apiece different preference i would like to start with logos appeal and specifically i'd like to start by addressing a repeal of the circuit court's order granting lakeside bank a first priority lean on the canal implementing bloomingdale so i just pays off the mortgages which were already existing i take your argument if we're talking about laws that were taking out in addition to those prior morning yes that construction of a fine ass or whatever after that but that they get a first priority lien on the property right that's a big hurdle either way it's otherwise they're not entitled to conventional segregation or to step into those shoes the at the moment that globo executed those purchase agreements both under the home because secondly they're harmed because lakeside came in not just replacing those those construction workers those construction mortgages mature twelve years ago in in two thousand and si this should have come to a head then in two thousand and six twelve years ago something should have happened to bring this to a head and lakeside came in and took out those construction lenders and came in as a as a hostile lender really to low both and in bed with with the lane and refinance the mortgages but didn't just refinance them they cross collateralized them they extended them now for thirteen years twelve or thirteen years and during that entire time what terms and by what lender if at all and they violated those rights they too that a way and that was a harm right from the inception then over the last twelve years late side has extended the loans time and time again they've freed up cash for view land to fund this litigation they've allowed the sellers to divert all of the excess cash flow from those properties and with full possession from lobo for these thirteen years established that it had a valid contract to purchase and and that it was incredibly specific performance and and the court basically dismissed all of our arguments that lakeside was engaging in this quibble conda one allow us to proceed with those they struck those those portions of our complaint when we filed it they struck those affirmative defenses and in different judges along the way we had many in the off the seller's obligations to lakeside nine point one million dollars and allowed us to abate approximately what is it come two point nine million to get to the twelve million dollars purchase price and then give us a judgment for seven million dollars which we probably will never be able to collect because the sellers have been rendered insolvent so we're paying twice our governments not getting paid because we can't offset it against the purchase price and we have to pay lakeside pay those mortgages and basically just eat our eleven million dollars judgment or most of it which is exceedingly unfair and as between lobo and lakeside lakes i went and made loans to these borrowers got personal guarantees and got title insurance insuring over lobos position lakeside ought to go and pursue its other remedies collect against its borrowers not against us the purchase of the original mortgages the construction workers themselves so how were you harmed if that's if that's the only part of this up because your honor like i said we've been damaged in these in these intervening twelve years we've been damaged to the tune of eleven point one million dollars and in the absence of lakeside extending the mortgages and keeping this ball rolling on behalf of the sellers for all those years we would have incurred those damages and because of lakeside coming in and redoing the entire deal from short term construction loans that richard twelve years ago to permanent financing that's going on and him  have because of that we've incurred eleven million dollars in damages and for late and we ought to be able to offset that against the purchase price and they're standing in the way and the circuit courts say you know allow them to do that circuit court also erred by requiring us to pay those mortgages under the purchase agreements it was a seller's obligation not lobo's allegation to pay off those mortgages if sellers express agreed that the mortgages would be paid and in the construction mortgage the seller would pay them or their construction mortgages x closing and they would be removed as exceptions to title from the title policy that's not what happened here even under the cour final judgment the court said that lobo had to pay big sites judgment which isn't provided for anywhere in the purchase agreement it violates our rights under the purchase agreements and they and the sellers refused to deliver a title policy removing lakeside mortgages as an exception to title so one of the circus courts order we had to pay like sites mortgages off and take the properties subject to those same mortgages that's completely different from what the deal was with the construction workers in two thousand and five when we were preparing to close on the purchase of the properties in two thousand and five the sellers expressly agreed that the sellers would pay the construction mortgagers and those encumbrances would be removed as exceptions to the title that close and lakeside is refused to accept was a whole different deal for itself to the to the stream detriment of lobo they want us to pay their mortgage they insisted on that circuit court gave them that so night you're arguing then the judgment amount the court gave you was not sufficient  with knowledge of a of a pending sale contract the mortgagee is subject to the same equities as the seller one of those equities are right to abate the purchase price lakeside is subject to those a the courts including the illinois supreme court have also said that more d g who comes in with knowledge of a pending sale contract is bound by the contract and all of its terms and provisions that's the illinois supreme court closing and not that lobo take the property subject to that so that by lakeside coming here and intervening here is really extreme it's eleven million dollars it prevents us from our equitable law what we're saying is consistent with the law of conventional subrogation because the first element of that is that they have a valid agreement to get a first perpetrator to lien and under the law equitable conversion and under these purchase agreements the sellers ha no right to make that agreement with that they can establish the very first element they can't establish that there's no harm to low as just discussed just second reason they're not entitled to conventional segregation they actually also were guilty of gross negligence the third reason they're not entitled to conventional segregation they knew they were take they were acting in violation of these purchase agreements in violation of logos legal and aquittal rights and they knowingly took that's the definition of gross negligence and finally they're not entitled to equitable relief we all know the maximum the max some one who seeks equity must do equity i've but that's not what they did here they did not directly they came in they knew that they were violating those rights under the purchase agreements when they placed their loans they knew the sellers had no right to engage in those transactions and they went into them anyway and their hands were dirty from the wrong there's no there's no dispute there and george mason said very beginning if lakeside wasn't in the picture she would have she would have granted this abatement right away and actually the the law provides as i said that lakeside because it knew about those purchase agreements when it made its loans lakeside is subject to the same equities as the sellers it stands in the shoes  sellers with respect to these equitable remedies and the main equitable remedy here that we're seeking is a payment of those purchase prices and lakeside is subject to that same a bit under  and unless your other questions on our appeal i think i'd like to reserve the rest of my time which i think is another ten minutes o no question that the time llobet made these contracts which it was both actually it had actual and constructive notice of the fire structure mortgages the conventional subrogation simply constitutes the effect of is asserting priority over the over the mortgages and the can actually act that section sixteen the mechanically know what the court finds is no actually to the extent that you paid off those other material then you have an equal lean to that mechanically  the payment process works in a construction site contractors give out waivers all the time in expectation of receiving payment they don't receive that payment the waivers are not in force that was the situation here whoa had we not paid contract be for what could have been a form of the time because perfection could have been still done at the time of the refinancing we should not be denied equitable subrogation to those characters simply because the forum changed level point so you could take an assignment and then perfect that's actually support to our position yes we could pick an assignment and perfect it equity should being done what could have been done at that time it does not require a written agreement in fact the existence of an agreement can be implied from the circumstance of one of the cases that we cited i forget if it was union bank or union plan from the fact that the the new mortgage the refinancing mortgages recorded at the same time as the lean the prior mortgages please indicated that intention what we established in this case was the loan documents the resolutions of the bar were underwriting documents the application or expressed uniformly without a doubt and intention on humans you have to give lakeside a first mortgage lee and this in that would be a substitution of the construction mortgages that were being repaid so that  concept of equitable and i'd like to take a moment to really focus in on this because i think it's significant we think that this court's opinion in the cell bank gives an indication to basement the cases that describe the bait that is a way of remedying a breach of contract between the parties to that the extent that we repay those other mortgages equitable conversion has no impact on that and neither do the consent provisions of the contract this court itself said it will sell bank consent is not an element equable cause of action the unclean hands defense was a limited i'm sorry it was dismissed on the pleadings below there's a dispute between the parties as to whether it was affectively appeal here we think what locals doing i just want to touch on this for a second the primary harm here that they complain about is capital excess cash flow from the properties that went out over a period of years up frankly your honor  court said was ok fine but you know something lakeside did not itself have any duty so to lowball to do anything with those excess cash again the construction  five hundred eighteen thousand that was paid to the contractors to smaller payments of approximately seventy thousand dollars each for property taxes that were paid and some of the money for the canelo actually went over to the bloomingdale closing to help pay construction mortgage on the building though there wasn't enough money that loan to pay the construction loan on bloomingdale so that's the subject of the cross appeal but we're not saying we can they can just contract with anything but we're saying that to the extent that all mortgage as the hinsdale case pointed out his deal was not a conventional separation it was a case where purchase contracts with place the seller obtains a mortgage on a property you know you good morning we have please the court again my name is john shied i represent the feeling janusz from the lands perspective there are two main points i want to communicate today the first point is that the award of specific performance was properly ended by judge bell the rama in march of twenty seventeen and the other point i want to communicate is that the damage award by the trial court in two thousand and twelve was was incorrect on and on to begin with the correct there were three your three elements the way it was written before lobo could engage the price adjustment they had to come forth with a permanent lender who had the loan commitment but what's critical about those provisions is that the loan commitment from the permanent letter ha no we just won't close on this thing the only difference between what your honor just said is that we quarrel with who we disagree with the fact that they even have the correct appraisal they were supposed to engage an appraiser of a certain type of quality a certain type of commitment and then has the third part it states that for a long commitment quote the loan commitment shall provide for a non recourse long intermountain equal to eighty percent of the purchase price and because there was no loan commit wasn't from a permanent lender correct it wasn't it wasn't a correct appraisal the reason why these parties required that there be a loan commitment from a not recourse lender is because it would require with force a lender now recourse loan obviously being one where there's no individual liability with less security a lender therefore has to make sure the praise all is is is more actually they're much more careful with out when there's a non recourse loan as opposed to when there's individual procedure it's a procedure whereby it be a specific more careful appraiser that would be hired by a lender who had more skin in the game if you well that's not what happened here they were told second bank they got an appraiser who came forth and lo  lease right he didn't get the fact that taxes which we paid triple that we supposed to other all these factors played into his analysis which dropped the price one point seven million dollars had those elements been properly accounted in here's why judge they would have received a benefit of one point seven million dollars so the first price of thirteen point seven million dollars mr kling said i disagree i think the price should be twelve million for these two pieces of if i may get their two points the first point they have no right to abate because they shouldn't have any damages because we didn't breach second even if we had breached section sixteen of the contract limits damages we argue against bas contract interpretation principles there's a limitation to damages provision that limited view lands damages to one hundred thousand dollars so again in answer your question because of that there should be no abatement and then lastly we argue that is  which judges the opposite we believe the global wants to put forth only certain provisions of ignore others our point is that we don't need to really worry about their praise or provision but we like some of the other provisions we don't like the limitation to which is provisions but we do like some of the other provisions and then with regard to closing the march twenty seventh team they refused to close they said well what additional conditions we'd like you to satisfy those are those on elements those words are not a contract but we'd like you to consider those as well from our position we said live by the contract or forms to close they did not on every month thereafter throughout twenty twelve twenty thirteen fourteen or fifteen there was no close we filed a motion to end service of performance in twenty fifteen for judge feldman that was do not they still didn't close and twenty that came after that and march twenty seventh judge felt rama took extensive argument from counsel and he said as we quoted in our in our papers in the words of mr scheidegger you buy the property you take it or you walk away from it it's got to similar argument that that because there was a contract that because the purchase contract you know mentioned in these mortgages that the buyer should therefore be saddled with them and the court in  viewings obligations all along to pay those construction mortgages act closing and have them removed and and it was not lobos obligation lakeside claims to step into those shoes philip side wants all of these additional rights it was slow boat to pay its mortgage not the sellers of the road who you know assumed that obligation not the sellers even though the sellers had agreed all along that they were going to pay the construction mortgages not lo w it's a lakeside is not merely seeking to just step into those shoes it's seeking you know all these additional rights to which is not entitled to and they did it at the march twenty third closing like site you know in the cellars refused to to deliver a clean title policy mr chide tries to blame that in chicago title but chicago title actually is on the hook here because they ensured that blake sides mortgages chicago title lawyers and has been paying late side lawyer lawyers in this case so they had a vested interest in not seeing this close as well because they would because lakeside you know was taking a partial payment but not a complete would their role is in these things but chicago title yes well regardless of what their role is it was the seller's obligation under the purchase agreements to deliver clean title a close and the argument  dead that rovers only if they didn't deliver clean title if they all they would deliver is a title subject to league sites mortgages late lobo's only option at that point was either to close to pay the mortgages and take a property subject to those same mortgages or just walk away from all of from all of it walk away from all their rights to specific performance is just i think it borders on the ridiculous that's not  it is what judge felt around ultimately said and and that's why we're here on appeal and don't fall on the did not did not terminate our right to specific performance basically he said you know i've tried my best go talk to the guys upstairs and go to the appellate court and you know he said it didn't close and you know the case of impending for thirteen years at that point he thought it was fine for us to come up here and and and you have to go back to your original agreement the purchase agreement required the sellers to deliver title subject only to permitted incumbrances and the sellers agreed at that time that they would pay off the construction mortgages closing and the construction mortgages were not permitted incumbrances that could be you know remain as incumbrances on the title i close and again lakeside so you know says it wants to step into those shoes but is now willing to live with agreement with feeling and as we know under the purchase agreements and then to love equitable conversion the land had no power to make that agreement no authority to make that agreement and it's very much like in the lists out case this court  know there was a purchase agreement with the contract buyer in that case who was claiming equitable conversion the problem was that the contract was signed on behalf of the seller by the beneficiary of the land trust and the court in the sally like the courts have and in other cases said the beneficiary of all amtrak is has just a personal property interest in the land and no power to convey an interest in the way and said therefore mr lopez did not have had no power or authority to convey an interest in the land had no power or authority to give lakeside a a mortgage like sides response that you know the destruction lenders could have assigned their mortgages  lakeside is beside the point that's not what happened had to construct a mortgage or mortgagees tried to can try to assign those mortgages that would have depended on the terms of those mortgages we don't know if they were assignable we don't know if they required a consent for cash flow from these properties is just plain wrong as he said moments after he said that you know we did seek a receiver we sought a receiver early in the case from judge epstein he turned it down on the theory that if they were diverting cash flow we could recover it at the end of the day but under the circuit court's orders we're not able to do that and partly in large part that's because i have a cash flow has all been diverted the sellers have been rendered insolvent and lakeside has allowed that to happen about a permanent lender and then those definitions i think run afoul of the actual definitions in the purchase agreements the permanent in section eight defines permanent lender and it says  buyers obligations are contingent upon buyer within ninety days after the effective date entering into a loan commitment with a lender the permanent lender prepared to provide permanent mortgage financing for the property so it says it doesn't say that the permanent lender has to be making and i'm secured loan on any particular terms or anything else that defines permanent lender as a lender prepared to provide permanent financing or checking bank lobos lender was a permanent lender under that definition contrary to mr shad's comments bobo did not go out and hire just any appraiser the permanent wonder did old second bank hired the appraiser as they were required and permitted to do under the purchase agreements as your owner said there's theirs they could have easily if they wanted to guard against mistakes in the appraisal they could have done what people do all the time they could have said there's a high low they could a civic get the right to hire a second appraiser of the two appraisers hire a third or any of those kinds of provisions to guard against mistakes in the appraisal there's nothing in the contract that allows them to void the entire contract because of alleged mistakes in the appraisal and nor is there anything the good just did the court found that there was absolutely no evidence that some other kind of appraisal appraiser mr shy talks about a more quality appraiser there was no evidence a trial interest mason found that there was no evidence whatsoever that some other appraiser using some other long terms as a as an assumption would have come to any remedies provided in a purchase agreements for the breach by the seller lobos remedies for a breach by the seller of the exclusive remedies of the wise clear good to have exclusive remedies it has to say so and in that same provision of sixteen and a has the remedies for the buyers for each lobos preach and it lists some remedies and it says these shelby the seller's sole and exclusive remedies for it's clear if these are sophisticated parties highly negotiated contracts with sophisticated lawyers on both sides if they wanted lobotomies to be exclusive they clearly would have said so in the same manner that they did with respect to the gentlemen that this was a very interesting case and numerous issues and i hope we gave you enough time to explain it to us and we will you know and we're happy with the