it says stand should have alleged in the alternative that if the salaries were correct and the one million dollar c e could not properly could not be properly applied to the debts that the bank  one point five million dollars which just last than a million eight hundred thousand dollars it doesn't really matter does it whether there's two guarantees or three all the guarantees are for for  which the bank itself transformed in from two point five and one million dollars that's a three point five with two different notes into one no for one point eight no way and so that doesn't make sense that nine on the year in cheap so we still have three hundred fifty thousand left over that the second guaranteed that's never been adjudicated the one million dollar european that has never been adjudicated the viability there was no there was no duty to do it first of all in gross number one secondly the need to do it did no rise until  could have been filed that wasn't on so i just i was sort of involved that litigation tried the case but i did that work on the appeal and it never occurred to me that i should recommend that we  of the million dollar guarantee because based on the theory of throat mice in the first case that you're satisfied but when this court said to why th it please the court counsel i represent mark say every in this matter the doctrine number one and the appeal including the petition for rehearing filed by the bank and state their failure to seek leave to appeal from the denial  coupled with the controlling supreme court decisions in rhine river park and  reconsideration was filed and both parties extensively briefed on this whole entire issue and and discussed how this tray of sash which was basically a single unified of this loan transaction please remember that this was a case in which the bank not only in gross house one not only went after road iris the makers of those that not only had taken and applied the collateral that had been applied to notes but they also that made its social and the determination to sue mark and karen his wife on their personal guarantee indebtedness they were going after them and saying you're us money and we want justice we want judgments against you in thing the illinois supreme court basically puk the suggestion of justice cooke of this court in an earlier case which said we think that the state of analysis and of the more stringent standards of the same evidence test we're going to use the transactional analysis so that separate claims will be considered the same cause of action for purposes of race judicata if they arise from a single use the only supreme court cases and made the right decision in the river park case because here counsel is suggesting that well now marc executed a million dollar guarantee that's one transaction that what thirty seconds one minute later he acts accuse the other games aren't all march first of two thousand and seven at the closing time just won't and they're saying those are different transactions and that they can sue at their pleasure in a multiplicity of lawsuits though the only supreme court in adopting that well applying and saying this is the only test we're going to hear after use the transaction the transaction remedies against the defendant that would be marked with respect to all or any part of the transaction or series of connected transactions out of wish the action  and the restatement section twenty five the judgment states that the restatement further provides a claim to sixteen extinguished under these principles even though the plaintiff the bank or stand in the second case is prepared to present evidence or grounds or if there is not presented in the first action or to seek remedies or forms are really not demanded in the first action that is the controlling or on the state of illinois judge read properly concluded that this was arising out of the same transaction the same if you will the same loan the rebuild the loan it was a single core of operative facts that's exactly the way the bank treated it wrote price number one the doctorate is there to promote the finality of litigation between the parties and to avoid economy by requiring parties to litigate in one case all rights are rising on the same set of operative facts and also to prevent the united just bird that would result if a party could be forced to relive considered them and distinguished them and and pointed out that they were not in point for instance the the national recovery which is what vs peel it case that was a two page opinion that really doesn't apply to this case was thrown out the appellate court said same evidence test should have been allowed to these are different cause of the bashing because they were suing on the first assignment they're suing on the second assignment i would question very strongly whether back case would survive because in the federal case it was involving the breach of contract to sell an investment quality loan or loans but in the subsequent state court case  totally separate provisions were involved at report regarding a refund i know aren't premiums and moreover there was an acquiescence in the claim splitting in that case so that case clearly is not applicable and then the case cited by counsel in oral argument the lp twenty six case that doesn't apply either because in that case action number one was a foreclosure on real estate located cook county who was  ramage the guarantor was not named other than simply saying we've got an action here against this real estate we're going to foreclose on and see if the judge later on the green a second case this time they bring in the guarantor persona liability and say you are personally liable for x number of dollars to our bank and that we want to judge and the court there said and i  wonder if this would survive scrutiny of the only supreme court in the rye river park and hudson case but we don't have to get there because this case lp twenty six again is distinguishable on the facts there was only one case the second case where the plaintiff was attempting to impose a personal by billy on a guarantor on the actual appearance sheet in this case the bank is attempting to do it twice they did it the first time around with regard to the lawsuit and because they didn't like part of your decision in group heist number one and they failed to get a they get the attention of the court grant a petition for rehearing and instead of filing a petition for leave the bill for the supreme court think this say well gee i guess we could to push the reset button and let's go after mark again in a lawsuit number two that's not the way it works and judge  e after very carefully and thoroughly considering the law has cited that it could not work that way as you pointed out once having you wanted to sue mark the plaintiff could not hold back for later litigation one action which was at the horror of the cause of action soon upon engro ties number one counsel indicates that as well a restatement of judgments twenty two should apply and one are saying well maybe we should a particular claim in gross national we're not asserting that at all what we're saying is when you look at right when you look at hudson when you look at river park and you bring mark before the ball the court and you say mark you are just hundreds of thousands of dollars millions of dollars in personal liability because you give your team this one then those cases say you coming out that's not mark's problem that's not the court's problem that's your problem and you live with it we have one case you don't get to haul in because you did why one hundred percent of the outcome in the first case so you get to question of did you apply martin karen savva recent cd appropriately hard knocks you have it all before the court and the court could have done complete justice between the parties if you take the bank's point of view on  case and they think you know but hey we better back off a little bit we've been too aggressive on this we've got some we should have done and if we want to collapse from our the one point eight nine did they want it both ways they wanted it they are here on these guarantees and they want to keep this cd and apply it to that and he didn't guarantee and when the a judgment guess what you don't get the cd because you didn't apply it properly balanced oh my gosh you know we may cost you know with our hand in the cookie jar now they say look now i just let's start this over now one is the city has no bank post in versus russell case they did that in any guarantee because a guarantee will be strictly construed in favor of the guarantor because really he's only backstopping he's only backstopping the potential of the but you don't get the bootstrap advice and say gee it's all here you know it may be here but why didn't you bring it up and go i said number one that's when you had the opportunity