and that was the business that my rd client was engaged in his name is god thus we present three issues before the court this morning in this appeal  we challenge the circuit court's appointments a receiver in this case before either mr duff or prime were served with process in the case of they know what standard of review and we think that ruling should be reversed secondly we challenge the entry of a judgment of foreclosure and sale of discretion standard the court needs to look at whether substantial justice was done between the parties and then it was an abuse of discretion standard we believe that the court erred in default that was the only motion and my that that i brought before the court and i did i may be mistaken that m whether substantial justice was done between the parties and i believe that it was in their context that it was raised before the circuit court because there was an issue of some two hundred thousand dollars in accounts receivable with the bank sees through its receiver and there was a lease dress that method of protecting the bank's interest and that was simply for the bank to receive rents from the commercial building that was occupied by my client as well as other tenants again neither duff nor prime were given notice when the receiver was appointed under before they were even served with process and this was i think that goes to the overall aspect of whether substantial justice was done in this case when we maintain that it was not  i have a quick question for you as well didn't your client agree to vacate the premises now you didn't agree to vacate the premises he was conducting business out of the premises and what he did was i will look at the record i thought that he reached an agreement as to that the terms for him to move out he took some business records with him by agreement and left but i look at the record no i don't believe that that's the case i may be mistaken but that's not my i have a question and answer well what was the timing from when the receiver was appointed to when you filed appointed in july of twenty seven to correct i believe that's right just what was what was the reason for the delay by mr duff and not coming in to vacate the order appoint you know that the receiver was and they're physically taking over the business he was but he shouldn't be forced to submit to the jurisdiction of a court without being served because they send in a receiver and essentially an ex part forty five and following it's about seven pages and it's clear from an examination of this transcript that the circuit court by its own admission be operating under the misapprehension that there was in right or prevention that mr dolphin prime had the court business administration and not against crime and alex is advised that it had been defaulted twenty one days prior the court says i'm sorry i'm a little confused i'm just not getting this case very well if you look at the last page of the transcript that age fifty one he talks about march what the court's talking about there and then he says i'm entering motion for summary judgment against the one you want me to directed to mr camperdown now courts don't answer motions for s foreclosure cases so if you look at this with with the noble standard of review under house or noon i think that it's clear that the court erred in entering judgment against my most drastic actions a court may take to punished for disobedience to its commands the court has other powers which are ample in most instances in our judgment a default should only be condoned when as a last resort it is necessary to give just the man it should be set aside when it will not cause a heard chip upon the plaintiff to go to trial on the merits you cite the supreme court case of that dealt with section fifty decision in more mortgage foreclosure cases you've got the judgment of foreclosure and sale and then you've got the final order in the cases the final judgment approving the sale we're not our written submission when the judgment was entered on the basis of the default if you compare the transcripts of the judgment that was actually entered the court never stated from the bench that he was entering judgment on the basis of  he was if not he was granting a summary judgment it seems but in any event counsel was asked whether mr duff could hear from the s this order so that this appeal should be limited to the order denying that motion as well as the written motion that that palin appeals from when you take a closer look at the written motion that was filed by the palms in this case it's much more limited than the arguments advanced by the pilot during oral arguments on september th two thousand and eighteen as well as the arguments advanced  and also on the basis that substantial justice was not done in arguing what substantial justice was not done how many argue one that they had a meritorious defense the meritorious defense that they argued was that because the pilots were mitigating damages in advance a short sale offer as a basis of substantial justice not being done so my argument is that the court should limit the arguments advance by by the pollen as to what's in that written motion never the last the st argument advanced the point of the receive receiver was not in the written motion advanced by the pallet and i don't believe receiver must be vacated because only the mortgage or the server prior to the order pointing receiver he what he like to refer to as a beer legal title holder the poet advances in argues that there's an additional requirement that should be read into the mortgage foreclosure law that any beneficiaries of or under a land trust must also be served in order for a court to honor an order when the receiver and it's just not he is confused and entering just before closure and sale arbitrarily does a great lake that pay certain excerpts from from the hearing and the transcripts to try and trying to paint that is a is a decision made without reason and if you take a look at the procedural history and the facts it's quite the opposite the required amounts as to their leaving to be included in the judgment and the necessary language the small business administration wanted in the judgment that was not complete so the matter was continued and if you look at the order which is in the record it was stuck to the fact that there's no requirement for showing a marriage where his defiance that if that isn't something that needs to be shown under thirteen i want to push that white if you look at and in looking at substantial justice the court has to make a determination of the facts of the case the priest's egil history and there's not a hard and fast rule for all situations if you look at the the facts in this case the procedural history the fact was that the mortgage or never appeared in this case the only one that did actually physically appear in person was was mr da who was a guarant that argument is that for some reason the pollen argues that i wasn't able to bring an action on a note in guarantee at the same time as a mortgage foreclosure count and that's just not the case that's not what the law is that's not what fifteen a one of the only mortgage foreclosure was ads and that and argued the fact that they were attempting to mitigate damages  they would agree to accept fines from the closing to release their lien but not a deficiency but more importantly there was never a binding contract ever presented in this case the only things by the pollen in our oral argument in september that they were still trying to negotiate the terms of the contract there was never a final contract and i don't suppose when the court denied their motion it was even admitted that that short sale offer which form the basis the motion had fallen through and that basis their motion was then moot so at the time a hearing on the order denying their motion to vacate the sole basis a finding of fact in a ruling on the motion yes whether substantial justice has been done or would be done i don't believe it does but when you look at the facts here i think it's clear that substantial justice was done did the trial court make any findings with respect to substantial justice the court didn't make any findings no thank you supporter may reply thank you just as aldrich with regard to the standing of mr dulles mr duff as the president of prime he did businesses prime prime as the beneficiary under the land trust in beneficiaries interest the lender should have the option of intervening in the foreclosure proceedings so while you're right they're not unnecessary party they were named hardy's in this case they clearly have standing their parties in the an offer of compromise and settlement which is a complete defense to the section he stated to the court and to mr duff who was in open court in the case and i quote in the case of the s b a comes back and says we approve the just a letter of intent which mr duff had back and on april th but on july rd they increased their offer to purchase a commercial property so one million five hundred thousand that's in the common law record for it's inequitable conduct i would argue that on april th he agreed to a full compromise and some of the claims because he said if the eight if the s b a approves it he's not going to go to sale what does he do two weeks later isn't an actual sale is it no it's not and i'm sure you've been through many sales where there was a notice they simply didn't go through that could be your honor but you know what's what's the intention fall now he was in and of you want to know why he didn't do this for months and months and months the bank froze all his accounts seized dollars in assets put them out of business he didn't have any source of income during that time they stripped them of both financial resources he couldn't retain counsel i would submit to the court and he was bending over backwards after he had been stripped of his business is accounts frozen the rest of it the two hundred thousand dollars it's never been accounted for as you know howard mr sport i want you to go away here on your time