the banks mortgages their mortgage means ahead of the stumps interest is a matter of equity the bank had the last opportunity to prevent the losses and the bank was in the best position to absorb the losses and yet the court gave the bank the most protection from the losses that is not accurate on where it leaves an elderly couple in their eighty's with no real estate development experience out almost six million dollars  purchase prices and without seventy nine acres in property we think that was earlier and that's why we're here the result in the trial court we think is exactly what is supposed to be prevented by the which is going around since the state's eight hundred seventy two pretty much in its present form in mortgagee like the bank is regarded as a purchaser the purchaser of real estate may rely on the public record of conveyances to reflect the state of title unless that party has notice or is chargeable with notice of a claim or is to insure any interest that is inconsistent with what's reported one who takes the mortgage with any notes the actual constructive or incurring notice which is a form of constructive notice of an earlier unrecorded interest rates that interest subject to the previous interest does not have priority over it and is not a bona fide purchaser as to that interest contract with the stumps those issues were stipulated out of the case at the time the bank filed a motion for summary judgment before trial we do claim that the vendor's lien found by the trial court attached to the property and was not just against the parties that own the property as the trial court held and further that the vendor's lien that the court found related back to the time when it was created which would be the time that the stones gave the deed without being paid the purchase price that's all that has to happen to create or going to sleep in one terminates one and what later time not included in a prior document another would be some conduct that would be held to constitute waiver out we say waiver shouldn't be considered in this in the other transaction granted by the court is restoration of the status quo which means the parties are put back in the position before the deed was given and that would be before the mortgage so again we think done should be in the first position we also claim that the court made three urse of law that should be considered by this court in nov one of them is when the ruling that  he bank was not subject to inquiry notice and even if it were that there was not enough notice to cause the bank to make any inquiry but the evidence all the evidence  lawyer experts said that was the case further the ruling that there was not enough notice to require the bank to look for the system's interest suggest a misapplication of law as well either there was notice or when there was not sufficient to require them to do it and saying there was not enough notice doesn't sound right in that circumstance there were many facts and circumstances and they did lee known to the bank before it made the loans they put the bank on inquiry notice we outline them in detail in our briefs with bullet points i'll mention a couple of examples the bank knew in both instances that the stumps own the properties just before the transaction the bank knew there was no way that the swansons in there and it east could have purchased the properties because they just simply didn't have enough money so they didn't buy him out the bank knew that the stumps were not had no interest in the l c s in the trust that took title to the properties so they were not somehow participate in the new track transaction in that sense is it was easy for the bank to investigate this although they do have to do is ask a question of the swansons howard how did you pay for this property how did you get this property is the purchase price paid was there a  returns the parties to the deed to the status quo ante which as i mentioned is before the mortgage further s papers from the defined b s that is the swansons in their entities the bank could only acquire whatever interest in the properties as to the back way for is an affirmative defense but that not lead waiver the bank did not argue waiver at trial yet the court ruled the stumps and waived their interests in several respect the court also appeared to not apply the correct burden of proof it was going to consider waiver a party finding a waiver must has the burden of proving that would be the bank i clearly convincing evidence and yet a proven fact the stumps banking expert downs said the bank did not mean it per the prudent bank standard in many respects as from every loan and that the bank was on inquiry notice of  best lawyer expert said equitable liens do not appear in the legal chain of title and that a bank would have to ask questions to find them the bank did not even call a banker as an expert and presented was the executive vice president in charge of all loans and handled these loans yourself so there was no evidence that the bank acted prudently and the judgment in its favor is against the manifest weight of the evidence because it is not based on the evidence if the if the bank had actually done the inquiry that you're asking about what would it have done it certainly would have found out that the purchase prices had not been paid and  whether you whether the bank or the banker knows of the term equitable lino vendors meaning the bank knows that's a problem when a prospective borrower is having trying to have them make a loan against property that the borrower hasn't paid for because that jeopardizes their collateral exactly and you would think this being a case where the bank has repeatedly argued that these were collateral based loans and they didn't really care whether the swansons could pay for them or not you would think that they would be all that more much more careful about the status of the collateral and would have pursued further inquiry when they see the circumstances i described that the stumps own the property that there was no way that the swansons would have bought it and that the stumps were not showing up in any of the documentation for the l c s and for the trust as having any interest in the property so what inventors mean in this case if another person is supposed to pay if you did the property to this party and this party over here is supposed to pay for it and we cited in our reply brief at page ten  a number of cases including recent cases in supreme court cases where the court specifically said that that was not the case that that where a party  example a buyer is acquiring property and asks that it be deeded to someone else while that party is going to pay for it not the one who actually gets the deed it doesn't make any difference it's still of unders only because everybody knows that it wasn't paid for so i don't think that helps the bank in that regard thank you unless the court has other questions i'll go to my relief we are asking that the court reversed the judgment in favor of the bank on count four as to the frankfurt property and rule that the stumps and vendors lien for the purchase price is the period of the banks mortgage lien on that property that of course also requires that the court reverse the judgment of foreclosure and the order confirming sale of the frankfurt property to the bank we also asked that the court reverse the judgments in favor of the bank on count eight counts eight and nine as to the milk property and find that the recession puts the stumps interests ahead of the bank's interest as to the moki in a property or even if the court sees that in the alternative that actually the bank has no interest in the m property because there's been a rescission and there they they shouldn't have any interest at that point at all again that requires the court also to reverse the judgment of foreclosure and the confirmation  inquiry can finally that doesn't exist so and this case there are at least the re independence and alternative reasons why there can be  never was a vendor's only attached insidious properties number one the law is that a vendor celine is not an interest and or a right of property and we've cited three cases to the court on that at least the mellon bank case the they all hold not an interest or write off and if you think about it there's a really good reason why it's not a right property how could something that is underwritten unspoken on communicated on documented be an interest or own right of property where would a third party go to find it secretly where would you go situation against and mischel purchaser of property when that initial purchaser heats the property and doesn't pay for the idea is obviously it's not fair to keep the property and not pay for but we do not have an initial purchased or situation here and that is the second reason why you can be no renders me in this case for there was an agreement called the prairie greek agreement and in that agreement which was drafted must employ her in that agreement stump transferred good and merchantable title  documents we know that there is no and no reason was intended but even beyond that the testimony at trial was that neither stump nor his attorney early or unwinding or in any way ever communicated to any party case that he intended to retain him never mentioned it never brought up yet now today he's trying to tell everyone he  there is one very important and analogous case on an inquiry notice issue that i want to and that is the glenview case in glenview the court held that oral bank has no duty to make sure the seller gets paid a bank has no duty to ask if the purchase price has been a bank has no duty to search for or on the state of illinois law alternatively the bank cannot be subject to inquiry notice because there was no fact known by the back from which they could reasonably the bank knew the their head band oh a financial statement submitted by each of the swansons that there had been contradictory credit reports that they had gotten is that enough to suggest to the bank that they might be dealing with some shady characters and that maybe they should look a little more because their collateral might be at risk well i don't think so for a couple of  let me just also say stung spanking expert testified at trial and he looked at those financial statements and there was nothing in there that made him suspect that stump may have and th cited where a vendor's was given priority over a bank's recording mortgage never so you would be the first court ever the whole that a vendor recently should be stocks have not presented good reason for this work to extend or expand the laws we are asking this trial that this court to affirm the trial court's judgment i'm going to jump around a little bit but let me start with that one view case where the bank says that it says all property interests are not subject to inquiry notice in fact in that case it was decided based on a contract clause that if the seller conveyed the property prior to substantial completion the property would be subject to this construction loan mortgages and that is the clause th court said the the a bank had a right to rely on it expressively said that it would be subject to those mortgages it didn't need to go any farther and if you think about it overall property interests under reported interest perhaps on written interest are what equitable liens have always been about if they're in the chain of title then that's where they are their legal interests that's exactly the distinction that  so she and she didn't recall asking anything any questions at all about how they were requiring that acquiring the property or anything along that line she did not ask any questions about how i'm tracks out there and she did development well off and that was the next point i was going to it's it's real nice to lay out all these helos these here talk about trust and different all of these and all that it's all the swansons bond junior was the manager of party has noticed as i mentioned earlier either actual constructive or in part so you don't just win because in the first one to report as to the i'm sorry what was your second point that  that there's not a single calls right this year i frankly i i have to agree in illinois i have not found a case where that happened there are i haven't found a case where it happened the other way either record actually ruled but there was no vendors lead in the mortgage was the period there are some cases for example the south bank reserves for wrong which were decided on summary judgment and went up to the appellate court and were reversed and they that would suggest that there was that these question in fact in those cases as to whether the party that had offenders lean was going to wind up in first position but they were apparently resolved without further  there's nothing in this report so i don't think i think this is sort of a case of first impression either way to me if you're talking about the specific facts of this case and how offenders mean gets in forest but clearly the law is you don't have to do anything to claim a vendor's lien if it happens as a matter of that would be simply from getting a property and not getting paid and you don't have to take some affirmative act with certitude you don't have to do anything else it's simply a point of equity that you want people to get paid for their property and that didn't happen here ok thank you thank you arguments this afternoon i know that it's made the case a little clearer for me of the documents where unwieldy but it's we will issue a written decision as quickly as possible