action to determine if a claim is the same for the purposes of rescue the cat that is whether there is an identity of the cause of action the courts apply the transactional test the liberal transactional test that was adopted by our supreme court river park was done so in lieu of the more stringent same evidence as the previously applied in adopting the transactional test the supreme court quoted with the through all the following language in the nd restatement of judgments quote the claim extinguished includes all rights of the plaintiff to remedy its against the offended with respect to all or any part of the transaction or series of connected transactions of which the action arose the error made by the trial court in this case was its failure to appreciate that subsequent miss payments on a mortgage loan are just that a series of connected transactions at which the st action arose another missed payment on a mortgage loan does not change the operative facts that is particularly true as in this case where the plaintiff elected to accelerate all future payments d including the case from florida in the end it was scots and north carolina spoke of the issue as if we were suing on missed installments instead of the entire balance of the law and another point about some of those cases is that it demonstrates th its problem becomes apparent under the plainest theory a lender who files a foreclosure case and loses at trial is in a better position with more protection than a lender who files a foreclosure case and voluntarily dismisses it before trial or judgment according to the plaintiff if it files in loses it can file and refile as many cases it wants so long as it can vary the allegations of a default ever so slightly but as the district court for the northern district of illinois approach to rent judicata to avoid such maneuvers if the facts are the same the bank doesn't get a do over because it hired better lawyers to draft better complaints or more lawyers to draft yet more complaints and the facts of this case really are in dispute in this case there was prior to geisha between the same parties in fact there were two prior foreclosure actions the defendant want both of those lawsuits the plaintiff the not appeal either decision in fact the nd case was dismissed based on bankruptcy and a residential mortgage loan and despite all of this the back and forth from the bankruptcy court back to the trout court this case did go to trial at trial the defendants ex husband was the one and only witness presented by the plaintiff to prove its case but he never worked at the bank why he was called as a witness to prove the bank's case is still a mystery but even in spite of all of this back and forth the defendant prove ale at trial in the plaintiff did not appeal instead of simply file the thirty's like the st two cases never happens if the plaintiff serious correctly are never going to be part in this he should have been dismissed because the fact remains that says the st case was filed nothing changed there were no payments made by the there has to be some type of notice going out to the senate telling her he define it your loan is now current you can start making payments again the bank can reinstate the loan and never tell a defendant about it so that immediately put her back into default and if we look at the flip side of th both the law and this mortgage contract give that right to the bar or under the mortgage paragraph nineteen which is even title bar were right to reinstate after acceleration it says reinstatement is our right and section that the operative facts change in the last point i would like to make is that this case went to trial the plaintiff had every opportunity to have its case heard on merits if you don't like what happens after a trial you feel that's what we do as lawyers the planet didn't do that if i open other lawsuits it lost the yet and again it didn't appeal and then it simply filed this case for all of these reasons we're asking the court to apply rigid a kind of theory and just as mclaren can hear me yes i can hope i get so the counsel is so i understand this your position is because they accelerated the full amount of the loan that's what separates this case from every other installment case that and because this case which trial your honor yes the acceleration call do immediately all future payments that were due under the note and this case went to trial they had every opportunity to prove their case ok so so if a plaintiff lender accelerates the loan and loses your client walks away with her house free and clear is that your position if they if they were unhappy with the results of the trial court decision after trial then they lose absolutely that's what happened all the future installments are and that would have been due are relevant all my questions thank you thank you justice brennan you have any question i do let's say that we accept your interpretation of sigler and apply in this case allowed to not in law not impose the doctor where doing so would work in equity and i'm just result and what would be more unjust than someone walking away with a house they didn't pay for so why would we if we were in that situation or if a court trial corin the situation would never be the perfect situation to say that there is judicata even though the case is on all fours it's an equitable situation where the doctor should not that point this is the subsequent losses were nothing more than a collateral attack on that judgment but if you look at the equities i mean no person should be forced to go through this many losses whether they paid the mortgage or they did it there  i'd love to go through this many lawsuits it would get me out of paying three or four hundred thousand dollars i'd welcome well i mean there's a cost on everybody there's not only will it again cost of the court and i the cost on the court system dangerous though for a bank because the sister dr if you will collateral estoppel issue preclusion could apply to a future suit as well so a bank that you know m this is the ball and loses on specific issues they would be precluded under collateral estoppel of a future suit even a phrase judicata did otherwise apply it would not be true well i agree with your logic your and i'm not pretending that other courts haven't followed this line of reasoning what i'm saying is i believe that logic makes sense and all you sue for was the certain somma there's nothing that this requires the lender to sue for certain number of installments i would whole heartedly agree with your honor that they can refile for the installment that they didn't miss however where they excel or even in the take advantage of that provision that was written for their benefit and they loose that's a decision they don't have to appeal but if they lose that's what i think has always been should be treated fairly and they need to file an appeal they want to do that are thank you i don't have any additional questions  and the fact that it has to be filed before foreclosure as indicated by associate asset management l l c versus cruz two thousand and nineteen il apple an eight t or what amount of money will all unquote remedy the alleged three and so the idea according  to this case which dismissed the foreclosure proceeding because it determined that the notification of acceleration was snatched pacific enough that it failed to give the mortgage or the opportunity to present a check in that amount and no longer be in breach and no longer be subject to foreclosure so when you say it's a right of the bank this case seems to suggest that this right in so far as being able to terminate the relationship between the parties upon a foreclosure and see to it that the mortgagee doesn't have to keep piling lawsuits constantly after every default or at least within it every ten years of the oldest default it would seem that the purpose of the notification is to actually tell the  mortgage or that it has a right if it is willing to pay off the acceleration amount indicated that they will no longer be deemed to be in breach and there the there won't  foreclosure or if there is you can appeal on the basis that you supposedly are the mortgage or supposedly head to satisfy the requirement to pay off the delineated amounts so my that i that i handle under that particular mortgage before the loan could be in default the lender had to tell you hey mr cruise you missed by payments if you like that you're the default here is how much is due and they could have said for instance if you don't pay this amount we're going to sue you for these five team in other words they didn't have to sue for the accelerated the full excel rated balance and the one thing that i would like to point out that i think it i issue is this is not a typical installment contract for instance you know prior to colored we would order a certain amount of paper every month from a from a paper company and every month they would come and deliver the same amount now in april there was a dispute about whether we paid for that for that april payment because we were in the office and i guess people at the paper company were there you know usually either and the difference is in may in june in july and august paper company still came and delivered the paper and we still paid the the check for the for the amount that was due now went with the lender decides that they're going to accelerate the difference is that if you cannot make any installment payments on the l w and the lender has no obligation to accept so i think if these were cases where the borrower could continue to make payments and we have litigation about whether installment or two was was missed then it's a far one that he's absolutely they could file another case later on down the road but the difference being there was no excel races i do think that's an important  search for the word acceleration and the word or term acceleration clause and i couldn't find it either terror in that decision so how does a decision that doesn't include a term relating to excel or a sion cla supposedly have some material or relevancy to the claim that it's presidential here i will i will see if you think that the reason i believe is president you your honor it and we got into this in the briefing and i'm sure your honour's remember  whether these cases under the single refiling rule have any relevance to the issue before the court today and the reason we believe they do is because the the scene test the transactional test is used to determine if a claim is the same under both the single are you telling me something outside the record especially outside the opinion yes and i apologize for that your honor when you comment on the fact that in cob it mentioned that the reason why or at least the operative fact that seem to control was the fact that it was an identical default state it wasn't one after each arrow that at matur is it ok if i speak about homo because i'm intimately familiar with that the reason i think that wasn't one hundred percent dispositive of the issue is because one of the parties one of the a new cause of action it would have indicated that in kogelo they could have said something like well this problem can easily be remedied well i'm sorry but the operative facts or at least the facts that the supreme court thought were relevant was that the  going back to my original thought or question was what does the acceleration clause covered as a cover only default in payments or does it cover that would indicate that the contract has been breached and because it's been breached like for instance failure to pay tax installments or to keep the property in order or whatever the terms of the mortgage in the notes say is the acceleration clause effective as to any breach or just to a default payment any breach the only the only difference being if you look at paragraph eighteen of the mortgage the due on sale cause the lender still has to give notice prior to filing a lawsuit and time and time thinking about it correctly the lender does not have to give the  rationale here your logic if there is one and i believe the terminology in the acceleration clause says something to the effect that if the mortgage or is in default then the mortgage he may give notice accelerating the payments and if the notification related to one default in one payment and then the case was not so did and then later on there was a sale and the due on sale allegation in the pleading was made to force payment to satisfy the lame according to your logic as i understand it is that litigation would fail because the exploration clause is supposedly some has some race judicata effect on the fact that the ability to in the reason i think it's a little different because it's not in payment obligation for instance even the taxes in the insurance those are covenants in the mortgage however if the lender advances taxes or insurance the mortgage says that those amounts get added to the amount that due under the not so when we're talking about monthly installments when we're talking about taxes and insurance the way i do that is those are all payment obligations the one thing that's different than the do on sale cause a sort of like an injunction he don't sell the property rights so i i actually believe those defaults are different in that perhaps being the only difference in that one is a payment obligation the other is sort of a don't do that don't sell the property or you get  on the street corner outside of today what might what my thoughts were i have i have an alternative theory i'd be happy to share it with the court if you think the court is interested in the i i'm only interested in or what you've raised  think that the upper it manner but as i think it is a justice brennan was implying if it's established somewhere down the road like in your case that the mortgagee of failed in its litigation to establish a breach as of january one of two thousand and as for rare i think instrument that was sued on an absolutely not they can sue on and subsequent installments in a different case i would i would agree with that but if the facts actually change i think that would be another basis for for the argument that we have  relevant to the cause of action well yes and no i suppose because if it he's went to try it out and you know i guess i'm thinking about it more from the perspective of a case being dismissed versus the case during t mortgage and obtain a judgment on the note based on the borrowers failure to make monthly payments of principle and interest in late fees on the note which according to the default were accruing through and beyond member th two thousand and nine that was the st alleged the fault a case to go all the way to trial in two thousand and sixteen and the trial court judge caldwell specifically ruled that the bank approved it had a valid note and mortgage and had proved that the borrower had and seventeen again to foreclose the mortgage and for judgment on the note and this time it was based on the borrowers failure to make monthly payments of principal and interest on the note were two thousand and nine through the present which is pretty similar to what the  st allegation of default was in the st suit and for failure to pay real estate taxes on the mortgage premises which was a new allegation in that case judge meyer granted the borrower's motion to dismiss the complaint with prejudice  er obtains a final ruling on the merits in her favor either through a dismissal with prejudice or through a judgment based on the lenders failure of proof then the borrower in the bank are returned to their to positions regardless of an acceleration of the note such that the borrower continues to be liable to make payments on the note and comply with the mortgage so any subsequent missed payments under the note or subsequent failure to pa borrowers favor but did not make any determination that would invalidate the note in mortgage or preclude the lender from ever suing upon the no mortgage the borrower and lender return to their precinct contractual relationship under which she was obligated to make regular payments of principal and interest on the no another florida appellate court case both baby versus baby you justice would not be served if the mortgagee was barred from challenging the subsequent default payment solely because it failed to prove the earlier default then in indiana the appellate court and have allowed be held that a subsequent foreclosure complaint was not barred by a prior foreclosure suit on the same loan documents when the st suit involved one set of defaults and the nd suit an earlier d fall because they do not share common nucleus of operative facts here the bar reclaims that those florida indiana wisconsin rulings don't apply in illinois and as support they cite several cases in which courts have held that a subsequent foreclosure suit on an open mortgage was barred by the disposition of the prior foreclosures however as i noted in my brief those cases are notably different because of their procedural status in those cases the plane of bank the st foreclosure and then on its own voluntarily dismissed it or it was dismissed without prejudice which triggered the application of the illinois single refiling statute which allows a plain of just one chain a chance to refile a claim after the prior lawsuit was voluntarily dismissed that procedural distinction is key here i believe the single refiling rule applies when a plaintiff intentionally decides to no longer proceed with the case or when the judge dismisses the plaintiff's case for wan prosecution in each situation the statute gives the plaintiff one more chance to file the suit before being barred the case before this court is a completely different procedural grounds in the st sued the court expressly held that the had recognized the distinction for rescue to kind of purposes between st foreclosures that were voluntarily dismissed by the wonder and st foreclosures in which the borrower prevailed on the merits thankfully both the st and nd district courts have issued decisions recently which recognize what the bank has asserted here in its motion for summary judgment the final judgment in favor of the borrower in the final of the prior to sue's return the bank of the borrower to their priests who condition in sigler resided in march this year the st district did hold that a bank was barred by the single refiling rule from pursuing a subsequent foreclosure complaint after it voluntarily dismissed its prior complaint however in sigler the bank cited the singleton in the after lobby cases which i had cited to argue before the court that the nd foreclosure suit which was based on later defaults wasn't barred by the voluntarily the voluntary dismissal of the st suit in rejecting the bank's argument the st district noted the procedural difference between a case where the lender voluntarily dismissed the case and when the prior case where the borrower prevailed against the lender on the merits and it helps when a mortgage or prevails in a foreclosure action by demonstrating she was not default on the payments alleged to be in default the result is to place the mortgage or in the more e g back in the same contractual relationship with the same continuing obligations we do not disagree so while it was not really a holding it was more in dicta it was indicative of the fact that they didn't disagree with that premise in the right situation even more recently in september of this year the nd district this court issued its ruling in wilmington savings vs pereira the brit court expressly held the single refiling rule cannot bar a complaint based on a later default existing case law makes clear that even when a prior judgment bars a claim based on a particular default a claim based on a later default of the same kind is not part of the brick court also cited that the last court which noted that the doctrine arrest you because it is not our claims for continuing conduct complained of in a nd lawsuit that occur after judgment has been entered in the st lawsuit this in my opinion is an expression that express adoption of the new default rule that's been applied in the florida indian and wisconsin cases and the brick or hall so distinguished kobo by holding that it doesn't apply when there's been a new key fault here there are two need new defaults that arose after judge meyer dismissed the bank nd foreclosure complaint the failure to make monthly payments and the failure to pay real estate taxes under the mortgage the fact that the balance due and owing on the note was accelerated in each lawsuit does not mean that the bank's note was used and could never be just decelerated or recovered on after the  suit that could be the case if the bank and voluntarily dismissed its case but here the bar would prevail showing that the bank and failed to approve the amount of the default so the loan returned to its presumed in dish and as noted in si ler and as determined in briere the determination is augmented by the way in which of the mortgage itself which holds that the loan is never fully accelerated until a final judgment is entered as the florida court held in the case more importantly the issue of of acceleration does not apply to the borrowers failure to pay property taxes under the mortgage which is the one of the new defaults here is this court held in pereira no equivalent of  acceleration of a no exists for tax and mortgage payments and a single refiling rule does not bar a complaint based on such a new default so given the recent rulings in signature and pereira the court should take the next logical step and the principal interest on the original mortgage does not impact any other payments required by the mortgage are right if anything that's past due correct she she has succeeded in proving when the bank brought its st complaint that she wasn't in the fall and as judge camille noted the idea of her receiving a free house is not equitable the bank didn't use up the note when it accelerated and then through a failure of proof couldn't prove that default it didn't invalidate the note and mortgage that's a key distinction here too that judge caldwell specifically held that the note and i don't know longer have to make any payments on this house and i have a free house the bank has lost out of its mortgage even though it loaned me the money to buy the house right i understand though that the other side's position is it is precisely that because you chose to a law and that that changes everything right but i think the case law is it is not in line with that that the acceleration in the language in this mortgage is not in line with that that this loan was never fully excel or rated up to the point that a judge final judgment was entered at any point in time the borrower could have gone back before final judgment was entered and simply paid off what was past due and owing to missed payments and reinstated the mortgage here so it was not it was not as if that loan was fully in finally one hundred percent due in the full amount of the loan the past payments could have been excel or it could have been paid what's the will then what's the impact of the nd claim case where you in effect sued for some of the same defaults and the ruling a rescue to counties that something like the case here so well in that in that instance under the same circumstances several the cases i cited have the case that's being decided is the rd case and where regardless of the reason for the dismissal if the dismissal of the nd case is on the merits in favor of the borrower it again returns the parties to their precinct conditions and although i don't think it was argued at least it's not in the record as to whether or not that there was a distinction but but if if the borrower prevails and shows i'm not in default it doesn't ultimately it women ate the note unless the court later determines in any one of the dismissals that the not longer valid or that the borrower engaged in bad faith and is barred i think those things would then prevent a subsequent suit but here where there are simply too determinations that the at least in the st instance the amount was an odor wasn't pro see your position just mclaren i have no further questions thank you what i think what i conceded your honor is that the this is the if it wasn't a judgement on the merits then it was dismissed for want of prosecution or voluntarily dismissed by the plaintiff then the single refiling rule would apply the single refiling rule but what about razor to koth if it wasn't resolved in the borrower's favor and i guess i'm trying to do think in my own mind how that would be i  guess it would be a deep dismissal for want of prosecution either the plaintiff wins the borrower wins on the merits or there's a ruling that it was procedurally improper or it was it was not well founded based is barred by the statute of limitations i guess in those instances yes restaurant kind of would apply even in a circumstance where you're alleging a thought date they couldn't have occurred at that earlier time i don't know in that instance i don't believe so i guess it depends on the procedural status of the prior suit and whether or not that prior suit actually invalidated the mortgage or made a substantive ruling that the borrower was that the bank had lost some of its rights th the through the legal process i apologize i'm struggling to imagine a scenario like i'm struggling to some have been an unfair question but as more and i understand the scope of your statement and i think i do i've no incorrect and then you have justice hudson's decision in pereira where he indicates that as he points out with cobalt that there is such a thing as a new default rule and the thing that i find most interesting is that the new default rule suggests is there's a new default i believe there was a footnote that indicated we didn't because i was on the panel we did not discuss because the parties didn't raise whether or not the new default rule applied to installment payments in any event so can you reconcile the holding in secular that says that operative facts relating to new default dates are immaterial irrelevant and in tappan of evidence these are having the new default rule well i think what what the court recognized specifically was that without addressing specifically the acceleration with respect to the amounts due and owing to the note it drew a distinction with respect to the real estate taxes which are fall outside the issue of acceleration and here we did alleged new defaults for failure to pay real estate taxes due under the mortgage as opposed to installment payments due under the note and those pacifically at least for think in the way this one was drafted it may be but the case law makes clear that just by operation of a prior ruling in favor of the borrower it if so facto returns to its prior state and  decelerates it does not remain accelerated but in this case as the court looks appears to me to be the only court that actually addressed this specific language in this excel aeration clause that move a court in florida you know that that that provision of its own does not operate as an actual full acceleration due to the ability of the borrower to cure by paying the past due amounts at any time prior to in a case where the case is not suited if there was no ruling but the but the plaintiff itself not suited then i think your only relying on the single refiling rule and you have a year to refile i attempt to allege those s if that answers your question well not exactly the point is if it was if a proceeding in a mortgage foreclosure is now and soon it and there was not partial summary judgment granted or cite some partial summary judgment or any findings made by a court of law as to the determination which under the crew's case says that it's a question of fact whether or not there was or was not a breach that was adjudicated and thereafter based upon that adjudication whether a court determined what the amount was that was due and owing to and then determine whether or not it was paid or satisfied so if those things didn't happen in the prior proceeding what is the law of the case that makes you think that the excel aeration clause precludes future defaults i don't know if there are if there were no rulings on the note i don't know that there was any law of the case that if the excel aeration clause supposedly changes the law relating to non serious because the law relating to nine suits suggests that the prior proceeding is an elegy and it operates to allow the plaintiff to start over again and refile the lawsuit now there's been some slight not a new case file number but the old case file number and i don't believe that summons would have to issue and service effective via service of summons so if the knob suit procedurally i think the courts have drawn a distinction between when the prior suit is non suited and it triggers the application of the single refiling rule d the courts have made a determination that the plaintiff only gets another chance to bring that claim because the plaintiff made its own decision barred the lender made its own decision i'm going to give up this claim for now for whatever reason i don't want to proceed i'm going to file it again a year from within a year from now  so it's i think it's the bone terry dismissal of the st suit that distinguishes those situations from this situation where the borrower prevail and you say this issue ation i'm not talking about this situation where there is actually an  i'm referring to your concession that relates to a now i'm suze my concession relating to not suits is that this single reviling rule applies and that the single reviling rule not necessarily residue to conduct itself but as mr trius noted that the determination under the single refiling rule uses the same rescue to kind of standards so i'm not and how or not aware of any i'm not either that's the strange part of the idea that a noun suit supposedly has some ramifications to f ect subsequent litigation when there has never been an order entered or an adjudication relating to any aspect in the case at least not insofar as an acceleration clauses i made agreement with you  are there any other questions relative to my questions or the other companions questions none for me thank you i do have one question counsel is the fact that the mor prevailed as a date certain in any way impact the scope of the damages in this foreclosure case i don't think so given that given the holdings that the loan returns condition and given the language of this mortgage that it never was fully accelerated and i don't think that was something that either side argued in the trial court or here  o i don't believe that that it would preclude seeking judgment for amounts that that predated that the recent default because that the acceleration is allowed to the failure to pay monthly principal and interest for july and august the twenty team the other concern i have is when we rely on these out of jurisdiction cases for example for the cases i think we have to take into consideration the equities and the reasons and the rules of florida and that's why i think it's not a good idea to look there with the counsel relied upon were dismissed for the effective equivalent for want of prosecution and i do agree that in florida the loan is not considered to be fully excel aerated until there is a final judgment of foreclosure there's no case in illinois that says that and i think that logic would make sense given the deemed and construed allegations that we cited in our brief that section fifty four c eight and c nine of the foreclosure law which talk about acceleration in the past tense there's no case that says that the court must determine excel aeration in illinois before it's it's think it's particularly true here where the case went to trial the thing i'd just like to point out again is that the logic i don't quite understand house a litigant is in a better position when they file a lawsuit they go to trial whatever reason something's going wrong they don't have all their ducks in a row other they're missing documents it allows them to dismiss that he's thinking even file a motion to dismiss in preserve their right to refile it even when there is a dispositive motion filed at that point it's up to the court that's in the court's discretion so that's a wonderful thing about the single refiling what it gives litigants that right and you know the sigma case i know counsel cited and he accurately represented the house sigler talked so for those reasons we think that this case is unique it's distinguishable and the key distinction is we had a case that went to trial and we had a subsequent case filed with the defendant one and this is the  lawsuit so for those reasons we're asking the court to reverse our alternative theory is that we never had a or they are certain there was a material issue as to what the real default what's you know the plaintiff made an allegation of a default in july and august of two thousand and eighteen and we came back with an affidavit stating i didn't make any payments i didn't do a loan modification i didn't do a forbearance of freeman so our alternative request is to remand the case to figure out when the actual off occurred so we think that the very least there was a genuine issue of material fact i think the court for the time for the for the excellent questions and unless the court has any questions i'm wishing all your honour's happy holidays and the  i have a question or two as a practical matter when is the amount of liquidated or determined damages times the damages are liquidated and the st one happens to be the judgment of foreclosure it would appear that the trial court d doesn't make a finding or an order at least i'm not aware of a maybe you can tell me as to what the acceleration clauses implications are that are finally determined in both the foreclosure and in so far as the sale is concerned issue for example if you look at the fannie mae versus hampson case out of the wisconsin the supreme court there the lender did not valid the accelerate the mom and the defendant raised that is the argument so in that situation where the loan was not seller and if that's an issue in the case i suppose that there could be a way to bring in a nd case where you properly accelerate now once and in filing but in most cases if you don't raise that the feds acceleration or failure exhilaration or failure condition precedent whatever you want to call it it's the wave and it would be decided in the in the judgment of foreclosure but i go back to the the demon construed allegation i don't think there's a requirement for for the of times clients file bankruptcy but continue making payments on their mortgage loans that happens quite frequently and in those cases right or wrong the lender may believe the borrowers and in the fall and they would still in my opinion be obligated to send the borrower notice especially someone who is paying and i simply paid for a one thousand and eleven years after bankruptcy with no issue and if if they had a situation where the lender believe that they were behind on a human or two i still think that the lender would need to give them mortgagees lawyer that he failed to follow statutory steps which as the lawyer pointed out were on necessary because he was only attempting to foreclose and get a sale of the property or a trip and they were going to do so psyched the claims that and buy the property and judge call all says that you can't do that because you didn't quote unquote follow the proper statutory steps and the bank did not appeal that claim i believe they discharged the lawyer and then later on sued him is that accurate that sounds right you're under a think and we found that he wasn't liable because the traffic court was wrong in what it determined and therefore there wasn't a spot for problems that would require malpractise liability correct that the intervening possibly with the terminology was used and i think you said that that decision said something to the effect that  it can't be brought up again or something like that and so far as the mortgage foreclosure is concerned no those are the arguments that the counsel for was representing the they made and we got a transcript of the arguments it's in the record got the  right to malpractise lawyer was claiming that because he couldn't bring in again therefore it was above four situation or something like that and he was saying runs you to kind of we could find out ok ok very good thank you for keep reminding