him representing brenda helms who is a chapter seven bankruptcy trustee she has intervened in this appeal and stepped into the shoes of the debtor the issue before this court is whether or not the summons that was issued   new trip before she filed bankruptcy is valid certainly as i have come to understand in two thousand and twenty life is hard right we've had to make lots of changes about what we do we live in bubbles more than we did before and often times we think the bubbles we live in our hearts as an attorney i know i have to follow the rules i have to explain those rules to my clients sometimes my client understand sometimes they don't as a bankruptcy trustee myself i spend so much of my time meeting with debtors now i do it on telephone to meetings i see fifty or sixty of those debtors every month i try and understand how they ended up in bankruptcy the decisions they made so  oftentimes when i talk to doctors they don't understand how they ended up in bankruptcy they don't i'm soon to stand some of the legal things that happen reason there it's hard right that's the bubble i live in we're all together in this bubble here this is not conducive to maybe the best way of practicing but we do the best we can because things are hard what i will say your honour's as i look at this this case is not hard this case is relatively simple the facts are not in controversy and there's no big long record explaining what happened the simple thing here is the summons didn't have to mean trips name on it that's all your honor one o one illinois supreme court one on one says that the debtor judge in the state court knew that was the rule but he didn't follow the rule here instead as you'll hear opposing counsel say he believes to a one c abdicated archway holding that that getting to the front of same somewhere on some paperwork is enough i don't think it is your own what the defendant's name needs to be on the sometimes i know it's tough it's hard to turn to opposing name tripp still resides in the property it's not like there's a rd party who's moved then it's not like they've moved on from this like so many of the other cases you have trashed were seventy eight years or twelve years has gone by and one of fourteen want this is simply require at the start of your honor's i think it's a relatively easy issue i don't think it's very hard to come to an inclusion and so i don't think i need much more of your time because attorneys love to talk when when we probably don't so you indicated when you started you represent the trustee who stepped into the shoes of deanna tripp is that correct that is correct i represent burn the homes i do not resent or represent the end of trip miss holmes is a p some trusty like myself she was appointed in haste and under five hundred and one l a level u s c five but one the trustee steps into the shoes of the debtor and can prosecute any potential cause of action that here and then with respect to the opening brief the white brief the cover of that brief is there any place on the cover to intervene in these proceedings and there is an order when we adopted in or preferably from that motion we adopted all of the pleadings of the debtor in the case as i sit here your honor i apologize and don't have the order in front of me but i did review it ahead of time we did specifically adopt all the pleadings that were already in the case and so right that's how we have stepped in shoes and i'm familiar with that so any question regarding standing that d'anna honor let me just ask another question though since this became a chapter seven bankruptcy is it such that the trustee is the only one with standing in this interesting interesting question your honor it's one of those were in jewels on the head of a pin sometimes as a bankruptcy practitioner as a teacher in bankruptcy i will say that the th circuit has held that the right of possession of the property remains the debtors so we give unto the trustee the cause of action we give under the trustee any remedy and the recovery would belong to the state but the seven services said very clearly that the right of possession of the property remains superior to the trustees right to divest that person of the property the th circuit said and only when we paid the feathers exemption fifteen thousand dollars homestead exemption ten we remove the debtor from the property so they still have a recognizable right we were to look at the plain language of that section the terms technical error and identified as a defendant on the summons are ambiguous you know i don't think i don't think i think they are i think they are simply saying what one a one has already said that they have to be identified on the summons fright that that the name has to go on the summons if you read it in conjunction with one  defendant so i'm focusing on those two parts of c we don't know what those mean do we have to look further than the plain language in order to figure out what they yes you're on right i would i would agree that that you must vote right you don't you know plead no statues read even without reading the other statutes i think i think i misunderstood your question usually that you would have to look to the other rules understand what well actually i'm referring to something a little bit different so if we assume that the plain language if we focus on these couple terms is not exactly clear in trying to ascertain the intent of the legislature at all to other sources and one of those sources certainly could does make clear that it was designated and designed to overrule or overturn paris isn't that correct i don't i don't know i i i think there was some pressure on them there was some discussion i don't think the legislative history is necessarily that clear saying they intended to overrule arch than i i i know that there have been rulings since two a one c came down in which  a proper log on well one of the other things i'm not sure it's that clear either one of the other things we could look to in trying to find out the intent would be the evolution of the language of the bill and if we look at that what do you recall what the bill's sponsor know royce the end of the statute of the amendment was this adding to a one seat if you hold on a nd simply let me check my my no well now you agree that what he said was the intent was to ever get let let me go further and say assuming that is what context did say about the purpose of the bill it is so clear and corrected so that cases that were seven hundred and eighty nine years down the line didn't get didn't get undone by the arch holdings yes your honor i do believe that was part of the pressure put on onto a one c but i don't let this in applying to thing i don't necessarily was ultimately i don't think this type of case where it was time we brought is the type of case we were trying to address by that you joe you do not think it was this this if there is i think there is a material difference between a case in which the court still has jurisdiction over all the parties and there is an error brought up on the summons versus a case where eight or nine years has gone by and so says oftentimes if you are guided by what the legislative history of the pressure on the history was there were these these cases where eight or nine years has gone by she's clearly applies here on here i have a hard time believing that when seven or eight years go by and you come back and try and vacate a summons that was issued seven or eight years ago that you haven't slumbered on your rights and so certainly trying to address things that are that old is part of the pressure part of what was going on to a one c i don't think they did it right i don't think to unseat language really gets to the point i think your honour's did a better job of it in a more recent case  c doesn't really prescribe the form of the summons does that it really to go to about the consequences of failing to adhere to the requirements and one hundred and one is that right that's not what i think one of them go just it's a little hard on the cell phone obviously so i don't mean to talk for you and i know you don't mean to talk over me but anyway rule one o one does not say the use of the wrong form of a su says the form doesn't matter and that's not putting the defendant's name is simply a form issue and therefore it's valid because of everything else that happened that that's why that's why my job is hard and that's why your job is equally hard trying to decide on the form over substance issue i think that the substance issue counsel opposing counsel will tell you all the reasons why he thinks it is a form issue i don't believe the legislature corrected it in the right c savings provision to explain what you meant and tell us what it is and why did he hasn't been m not mentioned there and i was not i didn't want to guess what you meant right so well and and and sometimes you know in frankenstein proceedings we take over another attorneys i've spent time monti trying to understand all the pleadings here that we have adopted just to make sure i understand and i have his notes which indicate that we are referring to the statutory provisions of one on one as well as one  case isn't like the seven to ten to twelve year old cases and where the party comes back and tries to get back in the picture because this was filed during the actual process of the case do you have any authority that indicates that that time in volved in any different tastes ed changes the way a statute is applied to  excellent question your honor i'm getting back to the right i'm getting back to the nature of where we are in the case right ultimately there has been an opinion that has come down that talks about latches so when i reference that this is different than the seven or eight years case i'm really maybe in artfully doing it backing into trying to explain that latches here doesn't apply because a recent ruling  you need to apply latches before you can get to the ruling so i wasn't necessarily saying that you would interpret the statute differently what i was trying to get to is that if you apply the statue your analysis is not complete you must still look to see if there is a last use the fence even if it hasn't been raised and i was back in the latches defense that here it wouldn't apply as where in those cases that are seven or eight or nine years down the line  clearly applies and as i have read in some i have read in the recent opinion from october you would apply last season when it's like ok i appreciate that now and if one of two of pretty clear to me that they were saying yes this is designed to take away the holding of our told ings versus p how can you see it any differently well i'm not saying it was my point that all pride that's offensive i was just curious how you see it differently you know i see when i read to a one c and what they came down to yes obviously you have enough money you can you can you can push through legislation because there was an issue here in think that what to a one c was intended to do and what it did are two different things right sure i think the legislative history intended to try and correct archway holding to get rid of all these cases i don't think that's what the language of the did i still i still think there is a there is a cognitive cognitive issue with whether or not the debtor's name on the summons is a sub indication they intended to overrule i wish they didn't like it i don't think they got there and that's all they want what's right i'm an advocate for the creditors didn't trip i got to play the cards i have in my hand which is i don't think they got there i don't think the language is clear thank you very much counsel and that justice bridges i have no other questions thank you ron thank you just con court rule one on one simply provide the form of the summons wild two to one spells out the consequences to the party who fails to comply with the want to one yes you're on i think i think point to not argue then a you know apple and a brief are forfeited and shall not be raised in a reply brief isn't this exactly what was raised here and why should we consider this argument that you made for older cases who stand on a case and preparedness brief you didn't sign any of this court's opinion you know that where we have held that quotable doctrine of latches my in what i've said so far but let me clarify i do believe the most recent case we would dress this issue which is the benita case you did apply lackies in that case i do believe that even though there may be a void judgment that landis does apply your honor and so to the extent that that was what was argued by mr reminding when he was representing the debtor i will say very clearly that is not the position i tried to take today on of the trustee i do believe that there is a material difference between a case that are seven and eight years trying to attack under fourteen a one the void judgment where laci supplies people moved into the property versus where that are still remains in the property and this is an internal discussion i've had with my client in this gushy this issue is that we do believe that latches will apply in certain cases and certain of these cases shouldn't be pursue trip i know that on july st this court entered an order it took our motion to dismiss the appeal to be heard in this case and i know that subsequently we got a motion for leave to adopt the consequence of that bankruptcy and that's in the record it to nineteen that order interestingly has not been appealed so according to judge a row as a milliner a twenty eight dollars team the proper party right what is in the in the property but as as we pointed out in our papers the not only does the case stand for the proposition they've got a right for possession it's a little bit different different though because it was a situation where the trustee was seeking to reduce the amount of money to be distributed to the debtor out of the exemption bonds to apply to rent and the th circuit specifically said you can't reduce the cash they get in as a consequence of not paying rent they've a right to stay there until you can pay out the exam that essentially what the th circuit said subsequent to the the equity in the property and in this situation there is no equity in the property and you can see that because d we had a a deficiency judgment which was was noted and i i have it's likely that you know our in our motion to dismiss that one so in other words they may have had a possessory right until they could receive money st they went to the homestead exemption but there was no homestead exemption in this case because it was no equity for which they would they would be allowed to apply to which they would be allowed to apply and we have also another situation also in present in laredo where judge  a prior secured creditor in one case i think it was a tax lien would take priority over the homestead exemption that the debtors could have so that all course in this case is that it's a mortgage and all of mortgages including the one in this in this particular situation contain waivers of the homestead exemption so the bank would always be in a position ahead of the debtors homestead exemption here so respectfully with regards the motion to dismiss which you've taken with the with the here with this case i think it is a simple solution the court can find the d failure to file the the notice of appeal on this helms part means that the appeal was not properly the nd ago into the substance of the appeal controls i haven't been around perhaps quite as long as mr zelin but i've been doing it for thirty four years and i never thought it was fair to expect trial judges or even for that matter appellate judges to have at their fingertips caption and the defendant was not named in the opening paragraph of the complaint you didn't get to a mention of the defendant until paragraphs i think it's five or six minutes into a should and in that circumstance the illinois supreme court held that the failure to not only name the defendant in the caption and on the st paragraph but also on the son and was not something to defeat jurisdiction when the summons was admitted lee was admittedly service upon that defendant who was later on so in that situation as bridgeport said they should have been allowed to amend the complaint on its face and the summons was sufficient to for jurisdiction to advance so to where i come down to it is if the court thinks it defendant well i would respectfully suggest that it was the the service list was attached to the complaint by the in much the same way that a law and a launch would be attached to a promissory note and it becomes part of the promissory note and i believe it was stable i don't think anybody's ever contested that they weren't delivered as a as a unitary document but if you look at the sentence at the beginning where it says to each defendant and then it says see attached service list that by reference it makes reference to these individuals who are intended to be and named as defendants the fact that it also says please serve an instruction to the processor but it doesn't in any way suggest to the person who is receiving the summons that they're not somebody who's subject to the summons and complaint and i think that falls right in line with with what we have a all the all the individual needed to do was to to look at that and the page that was stapled to it to identify herself as a party defendant now i'll go further my recollection is that she scheduled this debt in her bankruptcy and made reference to the actual foreclosure case so she was aware there's i don't think anybody's even suggested that that ms tripp was unaware of the existence of the litigation because there are a couple sentences the st two sentences say a summons that otherwise complies with supreme court rules and is properly served is not invalidated and the court's jurisdiction is not affected by an error in format two st two sentences were taken out and do not appear in the final version that was adopted so how can we in that the intent of the legislature was to have abrogated pereira with those two sentences gone i would say in much the same way as the this the opposite side of overruled prior appellate law if that of was an interpretation of the statute even if that appellate decision was not in a keeping with what the legislature intended in the  place but that doesn't make their statement that the law that is to say the flesh or case controls any less accurate ok so even if we were to assume that the intent was to overrule or overturn friends i mean it's it has not been overturned correct i mean there hasn't been it's still good still good lost of the stink how did how did this court resolve this conflict what do we look to i think you look to the supreme court case which per perhaps was mistakenly omitted in the discussion in the arch they were his pres case which is the flash in our case that you were just talking about that's correct so i think i think this court has the ability to recognize that that there was superior authority that was simply not considered in the arse bay versus pres case so it doesn't have to say that our debate has been overturned it simply has to say space perhaps was was decided in error and i mean that with all due respect i know two of the three of the panel were on that situation but but nobody expected in every appellate judge to have at his or her fingertips every proof supreme court case over the last fifty years and if it didn't come up that omission can be well understood i think ok what is you are response to the point quash within i think within a month or so of the order confirming the sale so it wasn't even a one hundred and forty one dollars petition it was simply a motion to quash and even if it had been on the basis of a default judgment  provision and his reply was  i'm not sure i have one for that also the language does say in want to one a sum and shall be directed to each defendant thought so that that you are agreeing means that the defendant name needs to be on the face of the summons i think it says it shall be directed to each defendant and it doesn't necessarily say it has to be on page one of the multi page document which is to attach together permanently ok have any questions yes thank you at mr obscene olinsky what is the purpose of a summons well it's it's supposed to give notice and will assume for the moment that there is no problem with it and you looked at the complaint which is what also what flesh never said to do is it clear that deanna trip is a defendant in this case in the very st paragraph of the complaint she is named as she's also an engineer and there's no confusion that she might somehow be affiliated with liles savings bank with reference to the these circumstances that occurred this morning with mr zalewski being here on behalf of the trustee are you saying that the intervention in this case by the trustee is not sufficient that something else maybe should have happened or should have been reported in order to be in a position to argue and have have standing here i'm saying that the that was filed was styled a motion to adopt reet and the proposed order that came with that motion indicated that the move helms was to be given leave to adopt the briefs it didn't seek to intervene it didn't seek to substitute her as the party defend and order the or the appellate and i think it was not sufficient to allow her to substitute in nor for that matter would it have been sufficient for her to to bootstrap back on it and a notice of appeal which was filed by somebody who according to ms helms had absolutely no ownership interest in the property so as of the date move helms sought to intervene in the trial court she took the position that deanna tripp did not own the property and that's been ms our motions to dismiss in the reply the rule laredo case says that the possessory interest created by the sec lee case in the th circuit applies only for so long as there is a homestead exemption in place that is to say you can't dispossess the debtor of the property without st paying out the homestead exemption and then laredo goes further to say what if there is no equity and therefore no exemption to be applied that right of possession no longer exists and that's exactly what happens here for two reasons one the judgment that was confirmed showed a deficiency judgment so there was there was absolutely no equity as a result of the sale in the  st place and and secondly and the the mortgage itself waves that homestead exemption in favor of while savings which is also in line with what laredo said which is that a prior secured creditor takes precedence over the a homestead exemption of the debtor in bankruptcy so i don't think the n a trip has a legal right to possession of the property pursuant to  court i i haven't really thought about that issue because actually i didn't see it being that much of an issue here i think one hundred and one says you've got to notify the defendant and and and name them it doesn't say the manner in which you get that's attached services and that document that stapled to the st page is entitled services so it's clearly a reference to the nd page and all you have to do is flip the page and it see see her name as somebody who's well three ny asked that question is why should this court have to consider this a technical error when plaintiffs could have cured the sec before the default was entered well i'm not sure you have to a bankruptcy trustee who spent hours just locked in a room talking to doctors about their lives more on a more informal basis than probably anybody you'll meet nobody knows anything so while i certainly can appreciate the fact that a summons with an attached paper would to me a person who who passed the bar would know what it means there's no way that i there's no way that ninety percent of the defendants when they get a summons and their name isn't on it you know the look to another page work that's just a practical matter it may have bearing on this or it may not those are the only two issues i wish to address your honor's  to argue those two seasons so let me just clarify clarify that counsel and i had a discussion when we intervened about whether or not it was appropriate for the bankruptcy trustee to argue this or not they still he still believes there is a possessory right and had informed be prior to the hearing here and it was merely a conversation between he and i that his client was still stronger than it has been his slimmer remainder exemption right of possession that's all your honor i i didn't mean to confuse the issue here that was a discussion it wasn't something that was formally said it was a good discussion between had sent to me about whether or not he wished to withdraw the appeal and ultimately it was we did not file that because it was not appropriate to fun so yes there was a document drafted that i had seen but to justice hutchinson do you have any additional questions no thank you jessica thank you ok thank you account so i have one question i'm confused by your last statement because i thought initially you you had come into this appeal and now represent slowly as the bankruptcy trustee but you seem to you know we take that statement back to say that  bill before us is the original appeal could you clarify your statement sure sure your honor we have taken up the appeal brenda helms of taking up the appeal we still understand that as a bankruptcy trustee that we have certain duties and obligations to the debtor that remain as those duties and obligations remain as us as a trustee within that bankruptcy proceeding so for us to be able to simply maybe to put in perspective for us to simply now take the property from the debtor is not something that we as a trustee could do in a bankruptcy proceeding so i am trying to i'm trying to be clear here that as a bankruptcy trustee we represent all creditors and we also still owe a fiduciary duty according to the seven circuit to the debtor so there is still a right of the debtor that exists here and i just want i just want to clarify exists no thank you and very well the court thanks both parties for your arguments this morning the case will be taken under advisement and a disposition will be rendered in due course mr clark you may clo