just claim against responsibility for its lack of good faith or failure to exercise ordinary care and are not alleging a lack of good faith or thought exercise ordinary care are you i think that's an issue that we need to be decided by the trial court i think that's what the purpose of the evidentiary hearing would be that argument is that that failure to notify within thirty days or you're completely barred from making any claim it is is overreaching the spirit of  that the the u c c provides that the trial court with then listen to as the comments mention listen on a case by case basis of the facts of the of the case and it may be that there is some issue that allows the customer even though they didn't meet the thirty day requirement to recover or somewhere all of the of the funds that were distributed if would you agree that if not in mr unable to have found the discrepancy within thirty days or ever he gets his account  statement that whether or not the bank last of the money was was only for recovery if there would be there tough luck you're mr mifflin on being the clear he would be in no way responsible for that seventy five hundred dollars that that is true that's money from the forgery is a result of the delayed that's what we should home i think that's exactly right and there are safeguards under the u c c to prevent it from going for years some paragraph specifically limits it to a year unfortunately  or you have no claim that that that exculpates the bank from liability for their lack of reasonable care it's saying that we're garbus of the reason that this check was paid out it could have been the bank's negligence it could have one where yes the failure is there was a failure to report within thirty days but the court then has to hold an evidentiary hearing to see if in fact the banks sustained a loss because of that failure to report if there had been some reason some some way that the bank could well it was dismissed so merely an emotionless and there was no way no hearing regarding any evidentiary it was it was specifically regarding the fact that there was a provision in the contract that said if you fail to report within thirty days you have no claim against exact opposite to what the what the current legislatures are and acting in terms of consumer protections were garbus of the reason that that the customer failed to report it maybe  property i would just say that you know according to the bank's contract it limits any any recovery there is no consumer protection whatsoever in their contract that they are allowed thirty days and as you pointed out that they would automatically recover  those thirty days and they have no recourse whatsoever none regardless of the reason regardless of whether or not the bank can show that the loss was was as a result of the failure to notify there's no no safeguards no liability after the thirty days and the z z requires good faith and fair dealing between the parties the bank has contractually rendered any consumer protections under four four six meaningless and absolved itself from all liability that agreement and the monthly statement that the account agreement and the monthly statement each provide thirty day reporting periods in writing each of them he mr unable to admits that the allegedly unauthorized check appeared on his november two thousand and seven monthly statement and he admits that he did not review his november statement until march of two thousand and eight and under the weight of the aid to the asians the trial court had little choice but to dismiss the complaint the evidence you're hearing that mr unable to and seeks is a complete waste of time and resources by the parties and the trial court because after four months first the parties contractually agreed that thirty days is the amount of time that the obligation is the account holder to review their statement and talk to the bank if there's a problem and they they have contractually agreed that that is how the party's relationship will be second after four months the bank's law says the as a result of the delay is obvious they cannot go back through the normal banking channels and in fact there is some authority from the illinois state supreme court does that suggest that that loss is pres it was with their first state bank versus first national bank of canton what year is nine hundred twenty four but it's never been i mean it's a pre code but it's never been overrule and in this matter it does build its argument on all illinois law judge can only at this at the district court followed illinois cases step by step by step case it's a second district illinois case he then goes on to say illinois illinois courts consistently enforce account agreements as part of the contract between a bank and that's customer it is a fundamental principle of banking law that the relationship is created and versus versus an illinois supreme court case so well reliance insurance itself is not presidential it is built on no annoying law it is step by step by step constructed from illinois importance following this illinois authority judge can only conclude that the parties here modify their obligations under the u c c the account holder agreed to shoulder the responsibility of reviewing statements within thirty days and held because it is undisputed that the account holder failed to report the unauthorized signatures within thirty days the bank is entitled to summary judgment there's no mention of needing to prove the customer's failure caused this loss there's no trial there's no eviden hearing an outstanding loan motion on a plainly disputed issue of fact was denied as moot its summary judgment as a matter of law it's a fundamental if then proposition if they don't report within thirty days then they don't have a claim against the bank and they are entitled to summary judgment mabel turns arguments mr unable to argument essentially seeks to repudiate the fundamental principle of banking law represented by the account agreement in other contractual agreements shift these things every day from the i i completely agree and while there are x number of elections that courts if you know probably been exposed to how many checks flow through the system every single day how many unauthorised in new york but not here so but all right well cut it is also true and that's a fundamental principle of illinois law that contracts allocate risks that's what they do parties are allowed to do that there's nothing wrong with that there's nothing inherently disputable or or illogical or subversive about it contracts allocate risks parties to contracts get to do that for themselves and to argument would have this court make brand new law here reversing well established rules governing banks and their customers inject uncertainty and risk into another nicely or contractual relationship and undermine the principle that the risk of loss should be on the party in the best position to avoid it mr unable to and was plainly in the best position to have avoided this loss he failed to do it if he does not in any of his moving paper certainly not in the trial other point from the reliance case that i think is important is it's a citation to illinois law saying that courts can the courts have held only courts have held the parties can limit remedies in damages for breach of their agreements if they're going at so so states and that's precisely what the account agreement does it limits the remedy your remedy is getting your money back when you notify the bank in thirty days you are ready for not let notify the bank in thirty days is that you don't have a claim against the bank if you want to go pursue your forger by all means go do that but but don't sit on your rights sit on your information for four months and expect the bank to ensure that your check is redeposited into your accounts that is an unfair shift of the the risk of loss on to the full on to the party does it say i'm sorry and is it in the record is bank policy in the record the bank policy of always paying it with in thirty days as somebody sent crazy a million dollars drawn on my account i don't believe that the point was  conceded that there wasn't but the reliance court then went that step further to say there was a contract you were required to report it was in thirty days but you didn't and you don't qualify for relief under subsection d two because in reviewing the facts of that case that was a commercial that was a contract between two commercial entities there were fifty one checks that were forged by an employee of the of the plane to spank so clearly in that case the court determined that that that customer contractually agreed to this and that they've allocated the risks based on who is best able to limit the fraud there is truly disparate bargaining power here the customer goes to the bank they have no they're not to be able to read the kind of remit across o parts that they don't like the only the only bargaining power they have is to go to another bank which mr nicholson is banks great like banks for well over thirty years so you know to to sever that relationship is it is a significant  which i don't know why he would do that but if he did put a freeze on that account and recoup whatever whatever you've lost from his account it will finally get in the bank argues that the customer's in the best position to avoid it you discover it within thirty days if that's the reasonable time that your your bank has given you to report it that that is your opportunities bank has to show that that your failure to report caused their loss after required i think it only it only arises when a customer discovers it as mr nicholson did be on the thirty days and reports it and then they conducted inquiry is to could we have gotten that money back and it doesn't require a court case if it merely requires a investigation by someone at the bank to say you know what we could have gotten that back through these avenues so we're not going to refund it to you or if we think that there's a there's a negligence on both sides so we're going to refund half of it i think it requires banks to take that next step unlike they have in their agreement that says thirty