appeal critical question of law for this do noble appeal is whether a court can issue an order that violates this unambiguous yet you either plaintiff as a lender seeking foreclosure notice a court appointed receiver or defendant clear construction general contractor which is essentially switched sides nor is a comfort that disputed the plane in unambiguous language just section sixteen of the mechanics when  need to follow your ambiguous dictates of section sixteen and is incorrect as a matter of law reason the receiver claim a one hundred year old case that does not even mention section sixteen somehow controls including makes an argument that was never raised before your argument has merit can explain claimants are not forced risk takers for further development of a project after they have performed entire reason for the mechanic's  point and prohibitive text of section sixteen does not provide any support to allow the order under review to be exempt from its dictates section sixteen states this conclusion in clear and unambiguous language this the entire case in the order violates section sixteen required reversal as a matter of law quickly addressing reef and the receivers argument reason the receiver avoid discussing section sixteen mandatory language all together and providing singular argument that the one hundred year old case of pittsburgh plate glass purses crane and controls and somehow allows the court to violate section sixt as a matter of procedure reefing receiver did not cite pittsburgh plate glass in a written trial court motion but the argument is wrong for the following three reasons number one as previously mentioned in the opening section sixteen was never even mentioned referenced or analyzed in pittsburgh plate glass something is not even mentioned it could simply not have been an issue or otherwise control and number two the supreme court in pittsburgh plate glass made clear that the subordinate mechanics mean interest on the receipt under the receiver certificates never even appealed from that adverse order so the issue was not even properly before the supreme court this is clear from the opinion itself and number three case referencing the receiver certificates was that there can be no collateral attack on an appeal the order for plate glass cannot be controlling everything else in that case is nothing but one hundred year old directly on point in this regard making us briefly was about whether an order giving a receiver certain powers had violated a statute the same general she was here and the court in that case held that the order violated the statu who has essentially switched sides now and jumped over to supporting the point that queen argues that section sixteen can be violated because section twelve of the mechanic's lien act and also one thousand seven hundred and four b of the mortgage questions yes thank you counsel you talk about pittsburgh plate glass being a one hundred year old case and not mentioning section sixteen but it does construe just don't know what in terms of the controlling value of that case it's clear and the supreme court made clear that the mechanic who claims did not even appeal an adverse order so the rest of that case really can be nothing more than non controlling dicta well the in that case really the receiver appealed from the chancellor's decree making the receiver sick t subordinate to the subcontractors lanes so the issue of free prioritization really was before the court and it was we are bound by illinois law certainly not any out of state authority and since we're bound by illinois law since the issue was front of ours in front of our supreme court i am struggling with why we should not  and so the issue itself was before the supreme court in pittsburgh it may not have said section sixteen but the issue was clearly the your honor i'm not so sure that the supreme court made that one hundred percent clear and i'm just referencing the language where the state true descendants an heir objected to the order but they did not so and in our brief we kind of reference the the no offense to our brother and from long ago the language in that case is not exactly a one hundred percent clear but to assume that a supreme court case would avoid that the clear language in section sixteen and no party on this appeal it said section scene itself gives authority to simply have a later encumbrance jump over a mechanics  problem mechanically and so to assume that the supreme court meant that section twelve could do that with no reference to section sixty seems to be just a stretch that just would make no sense under st and circling back to that what material facts are at issue they did not say they were construing section sixteen they said they were concerned section twelve which gives general authority to conserve and manager property but to assume that by not even referencing section sixteen which clearly existed back as far as one hundred thousand and three in substantially the same form for what we're dealing with sume that they meant that section twelve would trump section sixteen without even referencing that seems to be too far for starry sites to be controlling thank you i have other questions that i well i believe they would be on the top brief but i'm certainly well versed to be able to explain how kate is not ruling it and teach the did a good job in my opinion of talking about dictum which is what the court in that case kind of references all by the way and judicial dictum which case in case you talked about where they say it's it's not critical to the decision but the parties argued it and it was thrown in not as a by the way but is kind of support if you will so the question party's arguing therefore it was essential to the decision i would think the kates versus kate would say that it is not dictum because the who are almost in the same language in pittsburgh plate glass used the phrase it is doubtful they can be heard but by the way even if we were to decide this it's clear the evidence supported it so they did suggest it but clone the new arguments that were raised you also accept the principle that we may affirm on any basis supported by the record even though an argument was not presented to the trial court you accept that principle correct that's that's will have time for rebuttal mr look at this i think it's fair to say that all the sub contractors want the same thing preserve the greatest value of doing it we just do not see the value of these improvements having  shown at the trial court level the court decided on no real evidence and based its decision entirely upon speculation cases such as these modifying the priority right to the parties must be done with great caution and must be in the interest of all parties and only be done when a showing has been made it is necessary to preserve the property here there was no actual evidence submitted showing either unfortunately the trial court just assumed it was in the best interest of the parties and necessary to preserve the property all we have is an unverified lease which the receiver advised was still acceptable the g s a even though it had no start date on it and no one was provided the right to determine the veracity of that statement receiver did say the g s a was expecting their space to be done well underway within ninety days and to my knowledge nothing of substance has been done in that time period we don't know if the g s a is still even going to be taking this space let us remember the movement's burden of proof here we had no proof just a lease that may or may not proceed an unverified motion nothing else is very important to note that all these cases of modifying the priority rights including p p g were done after a hearing here we have nothing in the record to show what the property is worth in its current condition we have nothing in the record to tell us what the property would worth would be worth of the improvements were done so a true determination that could be made to see if the improvements actually create more value  one term than cost has never been done we have nothing in the record to say whether the income will be sufficient to support the extra dollars being spent versus what the income would be in its present state none of this was provided in the court and a request for this information to be before the court in a hearing was denied because that denial of speculative decision was made in a vacuum with judge we saying quote i think and quote it is in the best interest of everyone she did not say the evidence showed it was near best interest of all the parties because there was no evidence even though we asked for an evidentiary hearing both in our briefs and oral argument that avenue was denied us the court was in a hurry to get this going today almost four months later we have not seen a construction contracts a loan agreement or any plans for the planned improvements granting a few weeks to have an actual hearing would not have been detrimental to the project further judge we pretty much said that to her before and after analysis of the value versus cost would add no value to her decision that's the issue for the court pesticide are the when claimants in a better place before spending this additional money or after spending it we and you have no idea the answer to that question for the traffic court because crouch of court never allowed that to be analyzed this is not the exercising of the great caution that is required under the case law appellee say we did not object to the lease being put into evidence nothing was put into the provided to meet the high standards of taking this drastic action we would ask that you grant or appeal in overturn the trial of course the citizen or allow our client's rights to a priority lien be taken away from them thank you for your time can safely was attached to the motion and that there was no objection to it so the court obviously read the motion the motion was before the court the least was attached so  court had to consider the effect of the police on the property and on the value of the property so to say that there was no evidence well st of all you know we we after hearing that it be put into evidence and it was we asked for a hearing that actually considered and and the least here i understand the least may be whether the lease is in evidence or not  it's not absolutely clear because there was no hearing the important question is the least doesn't answer the question the question is are after what you spend the money to increase the quote increase the value of the property are you protecting the mean rights are you putting them in a better position or is hurting them because the case law does not allow you to hurt the original mean rights the only way if you are allowed to reply or ties which obviously we think you're not the only way to do that is to show that you are preserving the property not decreasing the value for the not decreasing the rights to of the lien holders and you can't tell that by what is in  parts that are or improved it we don't know what the value is with or without it was not it was not by the six million dollars the value we don't only we don't know that that appraisal was not put into evidence the judge had not seen that a president preys on and as you know counsel's statement said the argument are not evidence we don't know what the value is none of us have had the right to check on appraisals before versus after because i haven't seen them they haven't been put in the record there's no evidence of there's no record of that quote appraisal let me ask you something else obviously st statute the obligation of the receiver is to preserve the property doesn't going ahead with this loan to allow the improvements to be made so that they could occupy it two floors of this building preserve this property and isn't that you know not that so in the best interest of the lien holders i don't mean to disagree so strongly but well you know well you know i know because you have to do that you have to do a financial analysis of what the lease is worth what the improvements cost and the present value calculation that money and also get remember down the date what's going to happen is property is go so is it going to sell for more in its current condition or is it going to be sold for more and it's after condition after you and is it what's it going to be worth after you put this additional debt and this additional work into the property we just don't know and then  and you don't believe that it is common sense that the value of the property is increased once it's improved i agree that it's increased justice enough it's the question is is it increased  more what the additional debt is going to cost so let me just use an example let's say that we pay twelve million dollars or eleven or ten or whatever to increase the value but the present value of the lease of the property does not increase ten million dollars it only increases five million dollars we've just put an additional five or seven million dollars worth of debt on a property above and beyond what we actually improved it to thank you here i think we would have wanted to learn what the perspective of for some of the other leasehold tenants is what the possible rates are and another you know this g s a lease and i know it's there but it's very important to read there's nothing  the st page you know they'll have to they're going to do at least some at some later point to tell us if they're going to take it and when it's going to start so it's very speculative whether they're going to take it and the other supposedly being improved and what's how much other improvements are going to have to be put into those other rental spaces to make it work there are also issues regarding this property regarding parking there's some real unknowns that we didn't weren't able to get into with the court because we just didn't have that opportunity as you saw on the record i thank you evidence i think the cases are that's clear and convincing evidence because the language of great d caution and i think there's an i can't win the case and i apologize maybe i'll find it in the break but there is a case that talks about it's it's not just you can't just bit more than just the preponderance i agree with you and you know that they talk about and i think the places maybe it's doesn't say clearing and missing but they talk about clear they talk about  sir your point is that these questions that are raised in the briefs need to be answered by the evidence not just by arguments of counsel correct and that you know only with that evidence could the trial court make a full determination and could you if it ever not just some lawyer saying that that from page seven hundred and thirty four the northeast reporter case was heavily about priority of the me and the supreme court has decided that and rule and help that they can actually  incorrect the lease in this case is the critically the most important factor it is a factor that actually enhances this case relative to the other cases that have been build out at some point or another one to have to be completed or some tenant at some point down the road or alternatively the property is going to be sold us just a bundle of sticks that's not going to be answering the property  so the receiver is a job as if he were a job as a neutral as an officer or just to make these assessments and decide what's in the best interest of the property what enhanced the collateral the most and the decision that was made here is part of the how do you respond to oppose the council's argument and answer to the question of what else would have been needed in an evidentiary hearing all of these pieces of evidence  missing all of the testimony regarding what the value of the building would be left are sold without improvements with the lease with the improvements etc there was a list given  the analysis if indeed i mean we we know that the i guess the lease wasn't authenticated it was just attached to the motion was just looking at the lease sufficient here  court and it's and i think correctly if i was the i was going to wasn't going to need to require expert testimony which if you look at the transcript that's really what talent want to just we need to have we need to bring in experts and turn this into a battle of experts the mechanic's lien so when that would happen when the property might be sold or if it would be sold why it didn't work well i think i do respect i do respectfully disagree that it's not a question about whether the dollars a month is going to go to the new st priority twelve million dollars mortgage right at that kind of work twelve percent interest rate there's a lot of things that are going to impact the ability of the mechanic's lien holders to ultimately recoup their money and i want to go back to just judge we discussion about you know appraisals varying and of being you know not necessarily so important after thirty two years of experience as he puts it my question is that i mean right now the lien holders if they forced this into foreclosure they might i realize it's not a guarantee they might get zero dollars thirty cents on the dollar now sometimes that is something you don't want but sometimes it is something you want and section sixteen basically concludes that occasionally that's what's going to happen i accept that section twelve exists and i accept that the pittsburgh plate glass interpreted section twelve to have this implicit power to reprice attract we prioritise means but when we look to the concept of great caution that's urged by the cases in exercising that equitable power and i just keep looking at this record and i keep it just seems to be nothing other than guessing i have no doubt that the g s a lease if it goes forward will add value to the building i don't think anybody doubts that the question is will it add another value that ultimately it's apparently clear that the mean holders who are objecting  going to be better off and how do we say that without any appraisals one way or the other has to answer that question happens on and for an entire year or more and then all of a sudden it's this great emergency you know we come in we need this right now and the one million dollars build out i assume is not going to happen between may which was the date that the build out the eight million dollars bill that can be completed when construction is joined us at can be completed within about three months five very likely over the last you know a handful of months g s a and i'm this is you know obvious this credit quality has leased the space at an arm's length transaction before than before the foreclosure has started and was promising to pay very very good rest we've got to make up a huge difference to everybody a position that we want to maximize the value that clinton and sub contractors will be able to get out of this property at the end of the road no one knows where that road is going it's certainly on certain  d a tough question in our response to the to the motion we raised the questions as to limitations on the loan both in term interest rate which i think are important and once you once we couple those restrictions along with the terms of the lease i think that's evidence that's necessary for the court below to make a decision that's certainly not an abus yes just i had been thinking about why clooney did change its position and i want to make sure i understand you and what you indicated so i am i correct in the fact that i heard that clone retained an appraiser itself to actually look at the value of the lease and the effect it would have with respect to whether or not there were any improvements made the lease was go the lease was signed and the improvements made so that the g s a could occupy the space and just based on that primarily the g s a lien and the proposed financing but also to look at other other conditions at the property and that that's really the the core of our decision making on this and it  expert analysis the only thing that was presented was essential what i told you here and what is in the transcript about my summary of that now what was there and was there an offer to do that purpose there was not an offer if the issue didn't not come up at that time as to my recollection ok thank you i don't have any other questions you're the number as i recall from the transcript the numbers that you did provide to the court you indicated that the appraisal for lack of a better word had not actually been formalized or finalized is that recollection correct that is correct you're right and i think it would have not formalized into what an appraiser would call an appraisal it was conducted sufficiently for clune to not correct in this case that's correct so we on this record we still don't know what's going on and we are not taking evidence we don't know what's going on with the honor is it my turn again ok thank you very much just quickly in rebuttal i've been listening to all of the arguments and as i set out in my opening i think it rang true no party has explained or otherwise indicated that these receivers certificates do not violate section sixty i think that has to be concede so the question then coming back to sixteen is what  court receiver have to while a statute in the name of equity so it struck me as i was listening that we supplied the answer actually on page twelve of our grief from an even older case of we're dealing with older cases the stone versus gardner case from one thousand eight hundred and fifty eight that states we do not know of any power existing in a court of equity to dispense with the plain requirements of a statute i think that's the answer and is the answer that i think that the court has to follow notwithstanding p p d g p g and i think we stated in our opening certainly there are some factual similarities but what's not similar is that court did not reference section sixteen reference such in twelve but section twelve even in the name of equity cannot violate section sixteen so this court i think we've narrowed the issue is the p p g t a you can violate section sixteen in the name of equity contrary to stone even though p p d did not mention section six i think that's really the entire case because  section sixteen is violated and the court order violates section sixteen and in its reversing as a matter of law it doesn't matter what the evidence that's only a secondary issue that this court goes past section sixteen and said ok if they have this authority what evidence was sufficient so it's really a two pronged argument as we laid out in our brief and i return back to kate's because key talks about you can't just imply judicial  think that's really where this court is left with no choice but to examine section sixty eight as i outlined in my argument from the beginning and find out how you can get over that language because no party that that language gives you the authority t in their best interest but that your client correct your honor i think the answer is a little more nuanced than that and i think it has to do with what sedition alkali it has four clearly not the record but i can tell you as an officer of the court some subcontractors did not like this but they just didn't have enough money at issue to pay a lawyer to pursue our clients obviously this is a huge number and i would say the same thing with hill so in terms of agreeing i think the best you could say there was reluctant agreement by not appeal but i think that's beside the point the law is the law and whether they have a dollar or a few or ten million dollars that issue if you order e record as to why some of the subcontractors agreed to not proceed and why some of the perceived one at least on the proceed has no longer proceeding but you know the other thing is  seventeen million we heard that but really there affiliate is the company that is offering to give this new loan at such a high interest rate those are the kinds of things that we didn't get into or were not able to get into  you know twelve percent ten percent i don't think i'm speaking out of turn right now is a pretty high number at this in this day and age clue needed that analysis to make their decision and i think it's the ri analysis that needs to be made it's an analysis that i think the court needed and we need it as well and if that analysis is made and we see all the facts you know we walked in that hearing and i think you'll see in the transcript we were dead set against this concept we're dead set against the lack of information and the ability to know whether this was good we're not fighting this because we want to get less money we're fighting it because we don't know the answers and without a full hearing without an opportunity to really proceed and you know we could have gotten an appraisal you know we could have we had about ten days that's not the kind of time period we hadn't been in this case we don't have the stake in it that some of the other ones did ours is sophist significant but we didn't have that kind of timing to go out and get an appraisal really understand get through the g s a lease and get a qualified or any other appraiser to say ok yeah you're better off before versus so take up any more your time but there's just these open questions that we didn't feel comfortable for to know the answers to and still don't and that's i guess the problem we have i think that the problem just we should have been looking at  she didn't need it but i think obviously we all think i'm asleep we think we do and have the right to it so thank you for your time thank you mr lookouts justice enough any questions no i do not have any continue and the parties can sometimes settle before disposition is issued by the court have a good day everyone thank you thank you thank you