good morning as i said my name is on a stasis focus and i represent and rutenberg and hubbard street last selsey we welcome the opportunity to address this court's recent decision in asset exchange versus first choice bank with respect to two of the three reasons why the trial court should be reversed first the three sixty five three sixty language contained in the payment provision of this note is internally inconsistent unintelligible and as such it renders the remainder of the no ambiguous second sections nine and ten of the illinois interest act do apply to this note as there are no exceptions to those sections contained anywhere in those sections finally finally the only credit agreements act does not bar any of the claims of stated that interest shall be computed on the principle balance outstanding from time to time on a basis of three hundred sixty day year in this case the language is much less clear here it says the annual interest rate not the how can you sell for an annual interest rate when you use that term as part of the calculation unless they are multiplied and divided by the same terms or by the same numbers in this case they're not that in and of itself means  rate well the variable interest rate section does not mention the three sixty five three sixty one which if you turn to the variable interest rate section of this note it actually states that the initial weight will be eight per cent per annum the asset exchange was that the the phrase a year of three hundred sixty days redefines the term here for all purposes in the know there's no indication in that sentence or anywhere else in the know that that's what it doesn't matter how the interest is calculated as long as it comes to what i what the client was initially promised which was eight percent per year what is the reason for having it allows you to find the daily factor you can figure out how much interest is charged per day you can still use a three sixty five three sixty calculation method able it's not correct there's as long as it's accurately defined and stated in the note this is it in this case that's not what eight percent for a calendar year the fact that that language is included does not necessarily mean that my client would be charged more than eight percent that was the decision of the way the bank calculated the interest specifically they and you can calculate and get to that eight percent number still using the three sixty five three six you want because of the inaccuracy in the inconsistency and the in unintelligible way this three sixty five three sixty provision was drafted in th note because of that there was an ambiguity as to whether or not my client would be charged a higher rate of interest more than eight percent whether they would be to whether three sixty five story sixty would be used and my client would be to a certain degree yes your honor and the acid exchange decision did not address the internal ambiguity in inconsistency of the three sixty five three sixty language it addressed the ambiguity between three sixty five three sixty and pull and i'm generally it did not it did not take a look at the actual specific any real interest rate language and determine whether or not the fact that the bank draft i don't know where numbers know that without it we those actually weren't there's that in the first fifty five hundred nineteen thousand percent we would suggest that that's not reasonable but that's the actual language if you if you're trying to say that the the amendment to the it was amended but i don't think that the amendment went so far as to to give credence to this particular situation the amendment just altered section four of the illinois interest act did not change sections nine or ten and what it what it said is that it's permissible to calculate interest on a three hundred sixty day here we have never at any point during the trial court ordering up a briefing here suggested that it's illegal as a matter of law the variable interest rate provision and i'll actually read from it directly says that the indexes quickly seven point five zero zero percent per annum the interest rate to be applied to the unpaid principle balance of this note will be at a rate of zero point five zero zero percentage points over the index resulting in an initial rate of eight point zero zero zero percent per an reasonable interpretation of that is utilizing the three sixty five three sixty method you still i am still going to be charging an initial per annum per calendar year a rate of eight percent that's what the heading says garbus of what in addition to what the all promises were to induce my client into this but it was also put in the no because it didn't say at the top that we're charging you more it didn't have any any place in here the only suggestion that the bank can point to is that the payment provision which contains the three sixty five three sixty language which will submit to you if you convert to a mathematical equation which is what you would be asking my client to do at a closing or at any point prior to it you can't come up with a figure it's impossible to do so unless you alter the terms as soon as you do that that as soon as you decide which turns or my client decides which terms to change you may be changing different terms than the bank wanted to and so therefore we're there's an ambiguity we should be allowed at on especially in a motion to dismiss stage we should have been allowed to engage in discovery in present extrinsic evidence of the intent of the interest at any rate on a commercial loan we've never suggested that you couldn't what we're what our position is that sections nine and ten still require section four the illinois general assembly has routinely and throughout its history shown the ability to exempt certain conduct from the application of an act it will say specifically this act does not apply if for example sales finance agency act where it says this act  does not apply to any credit union bank or banking association similarly the can shoot consumer installment loan act this act does not apply to business loans the legislature had the general assembly had the ability to make a wholesale exemption and section four it did not do so sections nine and ten address a different concern section nine specifically addresses a concern exactly what happens at the initial if the heading of this no you have an year that's not what he what it what it does you can't solve it even if you were to determine that it's that if it was just a three sixty five three sixty method and that's all it said is that interest rates will be computed on a three sixty five three sixty again that still leaves the question of does that mean that my initial weight after using three sixty five three sixty is eight percent per year or is that what is used on the three sixty five three sixty method to arrive at a higher percentage rate that question would still be left open and here in your hypothetical and did it comes down to the last five days really that's what this is about it's about trying to say that the fans are charging eight percent interest if they if the target if three hundred sixty days was five days left and i found is left rather than give them any interest holiday of the borrower they have to continue to pay for those last five days of eight percent interest rate which of course your calculations which are not united by the other side raises the rate two anybody long top money can indeed charge interest for a year on three hundred sixty days with five days to go without giving a how annoyed they get the additional five g s mention that they can if it's if it's still disclosed and put properly in the know in this case it was in this case the language here was not regard us of the fact that the the the language here does not clearly state that the language here if your entire argument relies on the moving on to the amendment of section four that was that was completed after this note was entered into the world branch of the legislature indicated that it was a clarification of existing law be the amendment specifically references to provisions of section four it in its language it says that under sections under specific types of notes that you could calculate interest on three hundred sixty day there was no language to that effect or suggestion of that effect anywhere else in the interest act as it existed it would be our position that that and it would be our position based on the pullman decision out of the first district in two that found that a year means a year in both commercial purposes and other work others while it did not specifically find a three sixty five three sixty provision once in a political it found that a year meant a year for commercial purposes and otherwise would be our position that any retroactive application of that amendment would be improper it would be in the one hundred eight years later that it was it had it written in stone so what the fifth district of the first of her rights thirty  years later the legislature not on her interest rate they can't retroactively going forward they could from two thousand and ten forward that amendment would have effect but it cannot go back reach back in time to the note in two thousand and six when this was entered and changed the terms and the law at the time that this was entered into and that's what that's what would have to happen for section four to bar my client's claims is that the legislature in two thousand  change interest except going for well in that with regard to the definition of a year and the application of a year yes because of the perlman decision that that existed and so to that that was that was written at the time and that was the the settled expectation of the parties at the time they entered into the know in two thousand and six is that is that they believed the law as it existed at the time apply and that reading from that after a length of time as long as the law is still settled they they would be able to change it but going forward not retroactively and change the settled expectations of my client and you know if there  ago in fact by this same division in this court authored by justice connors and that case actually i think was brought out just a moment ago but that case actually involved a note containing our interest calculation provision is identical in every way the provision that's in in this case and in fact the note itself said that vision is very similar to this not as well as included at the very top a statement that the interest rate was  point something percent without standing out per annum or any other basis just as in this case it says a point zero zero percent at the very top of the note very similar note and on those facts  that provision this court found that that note is not valid the interest act and more importantly it is not ambiguous that even with interest rates on either side of the equal sign that section for of the interest act in fact when it excludes its application to business corporations and business other business entities in fact applies broadly to all sections of the interest involving corporations and the court there was involved you know actually addressing a claim that is almost identical to the claim of this case that sections nine and ten in section four cannot be read together and this  even more obvious now that there's the amendment to the interest act that justice quinn just discussed which retroactively work clarifying to clarify matter if i had the intent of the legislature in passing the interest act on and i think for massive exchange to that amendment you can see that the provisions of section four of the interest act must be read in conjunction with all the other provisions of that act including  clarifying provision that is paragraph five of section four and which specifically states that three sixty five or three sixty basis does not violate the interest act and as a result i think that sort of takes off the table the notion you stated there were three things that they said it could mean one was i think as they put it absurd and produced a five hundred thousand percent interest rate the other actually produced an interest rate below eight percent somewhere the sa range and it's hard to account for that if the stated interest rate was supposed to be a percent per annum so neither of those interpretations of the clause really is a reasonable interpretation of necessary and i think we both agree the or the provision that contained the interest calculation method and the court in that case said that you don't just read that you know he reduced vision separately you know one governs the calculation venturous one governs something else so counsel that there is no citation to any authority that those provisions still apply section section for as i stated earlier section four does not contain the wholesale exemptions that the general assembly has used in other statutes and specifically if you look at the language of section nine it says whenever in any statute public or private instrument whatever any sort it's any private instrument it's not only ones that that are are not exempt an section four similarly in section ten it states in all computations of time and of interest and discounts a month as shall be considered to mean a calendar month and a year shall consist of twelve calendar months that is in all computations of time not only in situations that are exempted in section four specifically section ten it has an analogous provision in the illinois promissory note act where it's the exact same thing in there are no exceptions to that statute