we ask a lot of questions then we'll give you some leeway in the time so you may proceed tha whether they parties agree that the defendants would return a security deposit by means of certified mail at the plaintiff's expense the defendants testified that that was the agreement and the pla that they had that agreement more fundamentally with this case though is whether the court will allow the plaintiff to reap a windfall from what we assert is a whol manufactured violation of the chicago residential landlord and tenant ordinance respectfully mr craig isn't the issue whether the ordinance allows that and not whether we will  choice would we have well i believe that the ordinance does allow hardy's landlord and tenant to agree that the there was a disputed issue of fact as you began your your your statement with and the court made its determination based upon that disputed issue  fact that there was no such agreement or that there was not sufficient proof that there was such an agreement we can't substitute our credibility termination because we weren't there at the trial for that of the trial court did i agree with what you just said in principle but disagree with its application to these facts and here is why the trial court did not make a factual determination whether that agreement was made it didn't get that far in the trial court ruled that the c r l t l prohibited that agreement the track court said you can't do that under the c r l t l even if the parties agree and there are a number of things certainly that the c r l t l prevents the parties from agreeing to one section sets forth a whole laundry list of things that a lease can't provide and if the least provided that most party signed off on that would be the parties agreeing to that and the c r l t l saying doesn't matter it's a matter of public policy is it implicit in your argument then the request not for reversal but for a remarrying for a determination of that issue and if that issue goes against you then your client would be under the ordinance paying even more in legal fees i don't believe it's implicit in that i think an alternative request for relief is that if we get that far that that it be remanded for that determination so i think it's exquisite but yes i agree with the fundamental premise and that is that if we get that far that is an issue that would need to be resolved because as of today that issue has not been resolved the trial court concluded that the c r l t o as a matter of public policy precluded these people from coming to that agreement slow on the matter of that principle if we get that far as you put it you would be in effect asking for a rematch which as i said could substantially increase the amount of legal fees for the other side not alone the wiggle fees if you want even if you were charging your clients and when you were charging them but i don't know we're over giving a factual determination about whether there was such an agreement it's definitely not our principle prayer for relief and if it was i think that the concerns you articulate would certainly counsel consideration of whether to bring the appeal in the first place if that was the only thing we were seeking please remain and let's have another trial well it's it's speculation my strong strong guess is that we wouldn't be here today but that's an alternative request for relief our principal requests for relief is outright reversal for the first several reasons the principal reasons being that there was an accord and satisfaction which if it's the case we don't need to get this fire is that factual determination by the but a dispute is inherent and here's why the plaintiff requested permission to get out of the lease early in the defendant's acquiesced way they arranged for a new tenant after the request that's correct and that's why it was easy to acquiesce but but the but they great and they met at the end of may two thousand and twelve and did a w and damage was noted it was acknowledged and the plaintiff agreed that the damage was her responsibility and she initially asked for permission to repair it herself because as she testified at trial she knew responsibility for and after failing to repair it herself she knows it's going to have to be repaired by another entity and that's going to cost money so there's  correct the court did make that fine and then our brief we assert that that was against the manifest weight of the evidence given that everybody agreed that there was any shit in her own words she said th expensive to repair here in terre is nat dense in the paneling and it's nat expensive to repair that's beyond ordinary wear and tear and that was not only the bulk of the evidence that was the entirety of the evidence nobody suggested that this was not substantial damage that's why she asked for permission to repair it it was a  going to be some sun that is less than fifteen seventy five we don't know what that is my client are to kill a same number and if the plaintiff agrees with that number then there's no dispute but if the plaintiff disagrees with that number we know she does because litigation ensued then there is a dispute i don't know but how do but i believe that the cases that we've cited where a check was given along with a milled item ization for instance in m k always start with one thousand then we itemized down and then here is the number that we're giving you and then there's a chack and then it's cached and as m k al says he kept the plaintiff the payee did not issue any receipt saying this was done only in partial satisfaction of what i believe is old it just cashed the check and file suit that's what happened here a ladder itemizing the deductions and that's accordance satisfaction and in addition to the accord in satisfaction i think it's important to remember and this kind of gets to the next reason actually is going to be the reason as a lead off because the co invited briefing on it and that is equitable a stoppel because this all happened with in the time period within which the defendants could have addressed any disagreement over that number and now only do we have what i would suggest is a concealment of the fact that she disagrees with that number but an active intentional disagree concealment that penalty then there is then the process stats with you correct you have to notify the defendant of that tent the landlord that you disagree with the dispute and that initiate a penalty provision under the ordinance if the landlord agrees with your calculation but landlord owes you fifty dollars plus the difference of the interest in if the landlord disagrees and stands on the calculation then you can bring an action and if the court agrees with you then the landlord's going to owe you two times the security deposit so there is a penalty a separate civil penalty under the ordinance as opposed to a carved out here's the here's the notice and opportunity to cure versus the others there's no notice or opportunity to cure the equitable salvos is an equitable principle and it prevents what i would suggest occurred exactly in this case and that is a very as we indicated in the previous the people in the same illinois heavy duty a responsibility to take reasonable diligence to avoid l and there's nothing that could have been more reasonably done more easily done then while this period is open it fights the bills she knew the number she called them she testified that she called them is that that time or she was hung up on was with regard to fixing the property i may not be remembering that correctly but that's but that would be before the return of the security deposit and the even though you think that you might get hung up on it's now that it's nat an onerous task to try again after you've received this and if you're hung up on you hung up on then you've discharged any responsibility have to even if you can't even utter the words before self pity hangs up you maybe if you did i think you'd probably be making the same it's really a fuel i think that we're now wearing gaging we are engaging in speculation that the buells would have hung up i think what should have happened here is that she makes the call and we find out whether the buells would have hung up or would have said you know you said it will be like charlie brown trying to kick the football and lucy keeps pulling the football up and he keeps trying to kick it mean ends up on his  on your back it's picking up the phone and calling i got this i got this item is ation i disagree that i that i was being in responsible for that yes i think she should have picked up the phone and it's undisputed that she did she agreed she never tried to communicate about this i thought it right so so in that's again not an onerous task to undertake styling a number and if the bills respond that way then maybe we're not here so so so if kind of bounced back and forth a bit but the says that you can't deposit a check and net in get the benefit of that pay without bearing the burden of the compromise and it's also the but well you know we know that we know that monies are old for the security deposit it so i mean we started it down right i mean unless the damage exceeded fifteen seventy five which is never been suggested there was going to be monies owed i think the illusion is to the fact that the lack of a i guess a formal demand articulat number by the plaintiff to get the process started as opposed to the defendants getting the process started by saying fifteen seventy five minus two twenty my street ows forty cents i hear you go  but he either there's a dispute or there's not a dispute if there's not a sphere that's the defendant's a number and if the plaintiff disagrees with that then there is a dispute it's inherent to it it's i don't think it's implying it's inherent that if you accept this shack you're doing it with the understanding that this closes all disputes that's absent from this case right and you think it's significant but it isn't actually from this case the language an empty out letter does not near the all i agree but in the context of a tendency which by agreement ended in may and a singular item of the damage identified corrected paid for and then a security deposit returned less than that i don't see how anybody reasonable person could receive that communication and think that there's still anything open would a reasonable person say oh i'll have everything left but two hundred twenty plus sudden two hundred twenty five dollars and thirty cents i expect a further communication i mean there would be no reasonable expectation at all for for this this closed that the tenancy is over she's out of the place it was a single item of damage that was discussed and paid for all itemized there is nothing further to be receipt nobody would expect anything further it is right she didn't track that exact language but the facts track that that left as it was entered by the trial court the issues that have just been talked about i think are addressed in the briefs and i think the record plays a large role in this case i think we have the legal principles but i think the zed properly as a case where is tenet just sued over her security deposit being sent by certified mail and certified mail costing to talk to in this case as is evident from the record arose out of a tenant who did not agree with what she was being presented with by her landlord at no wasn't she says night at the beginning i mean it's almost like until you get involved in the matter with resound i'm not sure from what they can be in dispute would be the issue of whether there was a reason to have three hundred three dollars or forty cents or maybe they got it and if there was such an agreement whether that agreement is expressly did you agree or did you accept responsibility for this damage was no she said no at the walkthrough she said in her testimony that when the damage was pointed out she did not accept responsibility but because the landlord said they were going to fix it she said well i'd like to have a chance to fix it myself because as she did testified she believed why would she fix it if it wasn't damaged  was told according to her i wonder ball at this walkthrough that they were going to repair it they held her responsible she said she didn't suffer sa civility but the landlord warner bill was telling her at that time were holding you responsible for this and her testimony was confronted with that she offered or asked can i come and fix it myself because she said in her testimony i knew it would be expensive she believed that if they were going to have someone come in and do work on this it was going to be expensive she wanted to protect yourself if possible from that cost so she offered or asked can i do it myself and then she didn't know and then she didn't do it and in this record we have a letter from miss the wall helga which says we can only have license contractors do the work that letter is from june i think in light of getting a better from her landlord out of war after this visit to the property with werner pool telling her they can only have licensed contractors do the work is a reasonable explanation for her not going back in and doing it herself she's been told we're going to have someone else do it ourselves in this case her testimony was consistent this damage was not caused by her it was there when she moved in i understand the l'amour sesamoid was different mr gould testified while we had it decorated before she moved in and she cost so there's a dispute about that but at the end of the trial the judgment of the still you're accountable for that if he was accepted my belief is that actually a wedo t says you're responsible or you can have the most doctor in your deposit for damage caused by the tenant or persons in the property under the tenants permission dollars in damages is that what this or this is really created or is it is it created to give people a reasonable chance at contesting the reasonable this of the duck sessions with their landlord we have a situation here where even the best reading of your record there is no smoking gun no express just spewed other by your vile to the other party say wait a minute we have a dispute about whether this is a reasonable damage we have a dispute about whether the amount you're charging is appropriate and it's just sit back sit back sit sit back and hit the multiplier but isn't it this ordinance can only be interpreted from what's written it and the cases that have already interpreted and we have as a guideline i cases where for example in the solomon case which talks a little bit out of court satisfaction just the facts an egg case tell us tenants got one hundred percent of their money back with interest it was a couple days late though it was held because the ordinance says these rules these guidelines the landlord does not follow the tenant isn't title to the remedy this provided in the reasons for why those remedies were installed i can't claim to know them but we have some guidance from this court from the past telling us that there is at least a soon to be were felt to be some disparity in the bargaining power and in fact it is true a landlord has the money already it got ahold of it they can get it back or they can keep it and to go back to what you were asking about we only talk about the tenant not be silent maybe the tiniest significant and we would have to acknowledge she didn't make any phone calls that's true after she was hung up on it after the walkthrough is after she sent her letter she didn't keep sending letters or call that's true but we know i after move up or after the call in the letter there isn't any there isn't that it's true that that that's the troubling aspect it may well be that the ordinance gives no remedy for the naperville they both have told us that and we have these kinds of laws that dictate what you must do if you want to withhold from a deposit which is held for damages and rent you have to send these notices and receipts but if you don't it when word is always in title those cases tell us to return the deposit and still sue that after that for damages or rent it's not felt to be inconsistent or somehow misleading to the tenant to give them their whole deposit back and then turn around and sue them for what you were entitled to keep from their deposit but didn't that's the difficulty we have for the tenants perspective is turning this around on the tenant and we know the ordinance is meant to be something the landlord discloses to the tenant and we know these obligations are on the landlord and because the ordinance doesn't tell us anything about the tenant does i think it's fair to assume those obligations which aren't written what she was going to do differently if the women were had registered an objection what would she have done i think it's fairly it's really be i question all that if the amount forty how about the two hundred twenty that's that's the difference but then we get to the issue of where the notice of any just you was that's my point i believe i since there's no requirement that the tenant give any such notice and since we don't have evidence that if she had given such notice anything would have happened different with the landlord who said well someone disagrees with me i'll have to give them their money back and i will give them the money back probably well i think they would then be on notice that if they didn't give the money back they were found to have it probably with all the money it would be risking far more than two hundred twenty six dollars or whatever it was significant that in this record which relied on his first agreement is actually werner's testimony that basically she asked for certified mail and he said well we don't usually do that but ok we'll take  deposit there's none of him testifying she said ok right agree i mean it's not in there that she agreed to that she specifically denies that that happened but even worse testimony and again as we pointed out the person to what's the reasonable miss of the landlord not following the ordinance infectious fondu of not of the ordinance i don't think we can pin this on anything the tenant did or didn't do and we can't show this kind of even head knowledge of what was coming out of her money before the landlord's time to make a change if the man that was even going to make that change was expired so we don't know if this tenant was even engaging in the allegedly concealing of the sequel conduct at a time when the landlord queried had done anything that would have changed their liability under this ordinance that liability exists but if you guys have any questions thank you thank you contractors had anything to do with anything is incorrect because it was the plaintiff's contention all along that she never got that letter and even as of the date of trial and i'm reading now from the transcript of pace to sixty five plaintiffs didn't get it meaning that letter that we're talking about but you know we have to acknowledge that they produced a receipt should the priority mail receipt so they probably put something in the mail we do not think that mrs bill was a truthful is not a truthful person so that letter was not the basis of any action i think if because she said all along and ever gotten the solomon case identified by the by counsel is suggesting there corn satisfaction is not available in the landlord tenant ordinances in the episode because the issue in solomon was whether he under the landlord tenant ordinance could ever be subject to the accord and satisfaction and it specifically left open the idea that if there is no penalty and it's just an issue of the security deposit s whether there could be an accord satisfaction in here if the amount is correct that was sent by mrs fuel then there is no penalty it's so solemn is an episode because it's specifically left open the issue that is raised in this a tenant with a real as opposed to what we assert in this case is manufactured in real c r l t ordinance violation that tenant has nothing to tenant with a real violation of the c r l t l has nothing to worry about if the state wide allegation of mitigation of damages is applied a real c r l t o violation victim has nothing to worry about by the application of that principle but a person who identifies a loss and can take reasonable steps to avoid it that person who i believe is the plaintiff in this action does does lose the ability to reap the windfall if those principles are applied and i think that this case these facts suggest why those principles should be applied we shouldn't be here today she thought she didn't agree to three dollars forty cents should have said something and then it would have been the you will score they could just disputed it or my guess is the same as yours any seen person would say you know what you said you're going to pay for but you know we're not going to fight over three dollars forty cents here you go and that would've been it she didn't give them that opportunity she should be equitably as stopped i'd like to hear you would refer to the point of the distinction between the application of this ordinance that limits the circumstances under which the stakeholder that is the tenant can with old certain amounts on one hand and the possibility to be the landlord in returning all of this if they assert damage  the c r a l t r i think that i'm going to answer the question please forgive me if i mean i've been asked corley let me just say again ok the difference is the see if the ordinance says you landlord if taken this money  as a prophylactic measure and regardless of what else the plaintiff might have with him it might be liable for there's only limited circumstances under which you can fail to return the entirety of that corpus of money doesn't preclude you from suing for anything else and the question then becomes the circumstances ordinance where you can avail yourself of the money that you've taken at the beginning of the tennessee think i think and forgive me and i'm sorry i think i agree with that i think i agree how i'm hearing the question is that there are two approaches that can be taken one would be to deduct it under the c r l t l and the other would be to return the full course press and then sue for what you believe is all the i so i i know you freesheet a distinction ok my question is doesn't that then say that regardless of the actions of the tenant which your client may object to oh i'm sorry if i'm going to be saying a truism here if you don't comply with the ordinance then correctly you didn't comply if you were nancy and you're responsible here or there was just damage that she said first i'll fix and then didn't fix and then the defense end but took responsibility for it and there was no just i mean that my clients testified in there was no ribot nothing to rebut it that they actually got a fix that they actually incurred the two hundred twenty dollars in fact introduced the trial was something they didn't yet have in the sixty day period and that is the back of the checked showing that it was fact pay so there's no dispute that she paid to twenty to fix the damage that was incurred and i think under any reasonable mean the plaintiff or suffolk malice that this was sick this was going to be expensive to to repair so the deduction was for that damage plus the postage which my clients sat this was our agreement and the c r l c e o does prohibit certain agreements between landlord tenant but this is not one of them and if the ordinance does not prohibit an agreement well then it would just fall back on the freedom to contract which is which is there and this certainly is that prohibited