of this court the unknown heirs have known him again in light of the bank's comments regarding our standing some preliminary comments on our posture before this court or perhaps in order first of all the banks made no mention in their briefing of our appointment to represent the errors and that appointment alone grants a standing there is no there would be there isn't this case no other way presentation of the is a responsibility of the courts independent of the representation to the courts review systems of a council or part of every court has the duty to examine its own jurisdiction and indeed within the last year or two this court has said that that is one of the two most important rules that any court performs and that duty to examine jurisdiction is so regardless of whether any party has raised an  occurs at every level of the court to the court system necessary parties has a dignity wellmost approaching jurisdiction and that is in the absence of the necessary  court may not proceed except in some extraordinary limited circumstances and secondly the court has an independent obligation to search for the absence of necessary parties and to refuse to proceed if that's the case lastly in terms of the factors justifying their participation here this court recognized in first capital versus to landis construction that there is a drift potential difference in quality between a reviewing court which reverses the considered judgment of the trial court and one which affirms the judgment of the trial court and were assuming that there's either a such some sort of a problem on appeal that is nobody appears to defend the appeal or they the appellant has abandoned it or something like that so in the in the situation where the the apple lead which would be the errors took no action because there were no i mean where there's nobody to defend the trial court then the reviewing courts have this obligation to determine whether there is merit in reversing the trial court whereas if it were simply an appellant who abandon appeal then the considered judgment of the trial court remains in force and this court has recognized that there is that difference so for each of those reasons we suggest that we are to spatially with the court here today it is highly appropriate the representation or the record the notion of a considered judgment of the trial court is a great entry into the substantive issues here because of the quality of the trial  here said that on appeal there is a greater room for time for reflection and development of the issues and i suggest that the trial court's actions in this case were extraordinary in terms and necessary party consequences and we recognize that this court has developed a line of cases which are getting increasingly muscular about the has to be properly brought within a course for stiction it doesn't drift action doesn't exist in the abstract somehow it has to come before the court case has to come there and that is why way of a complaint and i don't mean to be trite about this we've developed the this notion in the brief and that the complaint must be sufficient to demonstrate it just issues will question involving adverse interests the court doesn't exist to have people come and simply all agree upon the law there has to be adversity in order for there to be a just a question in the absence of the defendant there is no adversity and herbs therefore no just sociable question and if a complaint does not demonstrate the existence of just a question then there is no subject matter jurisdiction now a complaint naming a deceased person is a no a day and does not confer jurisdiction on the court and the the most prevalent is often cited case in support of that as keller versus walker which was a large part of the trial court's thinking and which is never touched upon that there is absolutely none your honor the more huge foreclosure law itself is silent on the topic and there is no case saying that with for this just inquired about as to whether it more in foreclosure somehow and therefore has the right to open in the state as an interested party so either in then tend to have an executor name into one of those routes and one of them there was a complete refusal to follow th here the court the trial court made clear what it's thinking was here and i believe in each case continued the case for the parties to examine whether they wanted to do that and to amend their pleadings and unlike what many many lenders do these days which is to go the thirteen to nine route and name somebody they refused to and then the court had no choice at that point because it no longer is a  discretionary call in the absence of jurisdiction in the absence of juicers just fishable controversy the case has to be dismissed and i might add following up on that that there is a procedure stablished in the chance division in cook county now for exactly this route and there's a memo from the former judge of that section saying you know here's what you do in here the people who are willing to accept appointment the last necessary parties offers a parallel and closely related alternative path for some in forming the supreme court i'm going to talk about the fact that court may not proceed in the absence of the necessary party and section fifteen dash fift one could not be plainer in saying that the mortgage or is a necessary part and so really the question before this court is is whether that requirement that the mortgage or is a necessary party and it doesn't say anything different and then the civil practice act in thirteen two of nine does provide a vehicle and easy vehicle by which the there can be a substituted party here and as we've already secure a party so they may proceed with the case so because a necessary party is absence the court is equally barred just as if there had been no jurisdiction from proceeding and there are a number of reasons for that with the other side is not challenge the law of necessary parties so i don't think we have to go into that the question of whether foreclosure is in rem or not is not a controlling question here there's a lot written about this but the banks are absolutely silent as to why that should make a difference in the the question of whether a foreclosure is in ram or not was introduced into the d n a of this case by wells fargo who was the the lender in other cases pending before the circuit court which led judge some code to to write his trial memorandum here and they said this is in ram and therefore we don't have the name period but without any intervening logic as to why that might be so at the time of reconsideration in that wells fargo case even wells fargo had abandoned the argument and no longer was saying that the fact that it's him run makes a difference and said explicitly according to rejoice impose my granda that it does not make a difference so if a foreclosure were to be regarded as being in rent i realize that there is no cases from this court saying that it is but never never in this context and is always having to do with time bar and never examining jurisdiction but rather only time limitations but if it is regards to be a strict in ram action such as a suit against the ford van or against fifteen thousand dollars in gambling cash then there would be consequences which are really untenable first this is what the property itself would be the only defendant second yet the legislature has clearly stated to the contrary there is no principal difference between a case in which the mortgage or is life and one in which the mortgage or has passed away and so for i don't know how you can escape the conclusion that a mortgage or is a necessary party and a court can't proceed if the if they live mortgage or is named then why is there any reason why the result should be has no impact on the necessary party argument which is grounded on the statute a few words about financial freedom but actual freedom is a case decided by the first district a few years ago as most recent suppression on this topic and there a son of the deceased mortgage or argued that the suit was time board so it sort of this case has the same type of scenes will foster if you will of the old cases which talk about whether these cases are in ram or not but the argument was not initially made there that there was a missing party and just a chosen chord reading the opinion said that if the court had any concerns it was that there was no single person claiming ownership of the land since the land was never quoted but in that case there was a son who was before the court vigorously contesting the action and the court said look this this person can't say that this case has not been vigorously defended because indeed it was on appeal the defendant made an argument but the mortgage or was necessary party but the court said that the argument had been forfeited and actually said waive but i know forfeited and because it had not been developed at all and so the court expressly said we are not going to take up this question of the meaning and significance of section fifteen zero one of the mortgage foreclosure law i think everybody in this room knows the justice gordon's reputation for thoroughness that if the argument had been made it would have found expression in the opinion so i think we can safely say that it was not argued it clearly was not to decided and  there are some policy considerations here which come to into play obviously if the court finds that the words of the statute are clear and we think they are in the court need not resort to policy considerations however we've cited cases w that policy considerations can inform and buttress a course decision in terms of the meaning of statutes any inconvenience to the lenders in this case is minimal and it would fail in routinely naming person representatives we are not advocating the efficacy of any particular defense we're not here saying who should win who should lose whether under the facts of any particular  case the outcome should be in a particular way we were arguing two things we are arguing for compliance with the statute and we are arguing for fair regularity procedure which is better calculated to reach persons who might have an interest in the a state per se named as a party but rather a personal representative and that person workers and it of can be somebody appointed a special work a senator of under thirteen to a nine or the executor of an estate and a state per  the naming of unknown errors which basically takes place in every foreclosure it's part of the form people to stick them in but that is not a substitute for the actual effort to name and find somebody who is a representative of the state and he suggested a simple suggests that the unknown errors has to do with the naming of somebody who is known to exist but whose there there's no functional percentage will difference between them and there are no factual wrinkles here the mortgage or was deceased before each case was filed there's a question when there's a slight difference is that when they found out that that's not controlling and both lenders refused to name her from representatives or in our view to comply with the s morning runners brian shorter for the employees charter one bank first of all to address the standing issue that very briefly page four of our brief does recognize and acknowledge that this court appointed c p l is to act as to defacto or haunt in this case we forward ever that the record is false as to say i am an error i want to fight this in the hunter case which charter one bank is involved in ms hundred died on august of two thousand and five try to one thought suit to foreclose simply serves no interest in advances no one's interest no one's asked for help no one's asked to intervene in either of these cases there's no need for this court to do anything except throw it out moving on to the to the merits justice freiman i trust in great detail and held and recognized that in the will have case discord specifically said a foreclosure action is a proceeding against the land not against a person that does not seek an in persona judgment it is a proceeding against the land itself that is a reflection of older decisions from discord that we have cited in our brief but the point is in financial freedom the first district squarely said thirteen dish one has no bearing and a mortgage for closer action involving a rather than name or i think you're on to that sort of as a semantic distinction that doesn't have a difference here is how a charter won or a b n amro chose to frame their complaints i don't deceased charter one then amended the complaint to add unknown errors which is what section fifteen s fifteen zero one c of the mortgage foreclosure act allows which is something that justice thomas had gotten into so no to answer your question i don't think that it would make a difference if they needed the address versus some other designation of the defendant the point is the mortgage foreclosure action itself is a proceeding against the way and it could have been easier as opposed to say the address of the property but again when showed a one first  d action it didn't know that that the mortgage or had been deceased so i don't think it makes it i don't think it's a positive difference but what going back to the financial freedom case this case here if you choose to decide it picks up where financial freedom left off because as his counsel looted to the first district in financial freedom did not take a few issue of section fifteen desh fifteen zero one of the mortgage foreclosure law because it decided that that issue have been waived and was not developed individual state are separate and distinct legal entities taken that exist simultaneously and what that means is that as our brief points out is that while the mortgage foreclosure statute defines mortgage or as a person in two circumstances the person who interest in a property is subject to the foreclosure and any person claiming an interest through the mortgage or as a successor they both call for a person and under one verse the speaker this court has already recognized that a person and a person's estate are separate and distinct legal entities based upon that it is our contention that mortgage or does not the more definition of mortgage or in section fifteen s fifteen zero one does not include a deceased persons a state because again this court's already said separate and distinct entities and we would point out that as we did in our brief that section the definition section of the mortgage foreclosure well was amended both in one thousand nine hundred and in one thousand nine hundred four after this court's decision in von and the general rome so my specific question to you is and i think i know at least what purtier answer is going to be in austin and i believe you're going to say that the reference dicta but in that case the court considered the distinction and specifically referred to foreclosures as kweisi in the room is that is that the the best case we have before us for an analysis by this court is to whether it's been rumored was in rome i will give the easy answer first you're right you know what i'm going to say at least in part that austin that court's statement is in fact cases are the ones you've mentioned will have versus bartlett and marcus versus public trust and title those are discussions of foreclosure proceedings granted in the time context of whether a claim against in a state the failure to file a claim against in a state bar to subsequent action to foreclose the mortgage i think the you know also some of the will have court in the marcus court are closer to the issue presented before you today because they talk about what isn't in rat what is a mortgage foreclosure proceeding and they talk about why it is in ram and historically it's been treated that way and it is an action against the land and if you go back to the eight hundred fifty s the old really old cases they all talk about how the statutes require naming certain people and how the statutes also require allow for naming unknown heirs as if that is and meaning that that is a sufficient way to deal with a circumstance when you have a deceased mortgage or and it's not a bank's job to go and try and find out who the heirs are that's not the bank's job their job is to deal with the documents that they have signed with the mortgage or and presumably then you the law certainly does make some reasonable inferences in how it conducts itself if there are errors of someone you'd like to think they would come forward and then as i said before in these two cases they haven't and we submit the reason is there aren't any or if there are a day or night interested in trying to assume just more rigorous or salvage the sale of property how how would the property serve well the logically they wouldn't unless they knew of this error my right hunter and you she was deceased or hadn't heard from her in by now since she died in zero five it's no two thousand and ten for a half years of gone by granted the record on appeal in this case is only current through judge simcoe his dismissal in april of zero seven we have nobody coming before any tribunals and their behalf saying i'm an heir i'm a potential heir let me do something i want i don't want to lose this property nobody's done anything for four a half years if it's an in room scene then you know i've been there i have to let me write the property yes so in that situation granted i would say i rather unique loophole hopefully very small one in the way the members for closure system is structured it's up to the general assembly to change that there and in this case again no one's coming forward so i don't know how that impacts this case but your example yes if someone's even if it's the last payment on a thirty year note and the problem is going to be lost because it's and then when proceeding that's the way it is but that's not the best viewing the issue in we have here in one and why the mortgage foreclosure statutes definition of more rigorous person again does not include the estate of a deceased mortgage or if there are and again when i said there should be some common sense assumptions underlying the law if you were the west for example were i making the you something that my red hunter has no where is because none of come forward if there were errors and they had any sort of relationship with her someone would have come forward by now to say hey i think that vehicle that gives you the legal right to extinguish some interest in order to proceed as you suggest against the law what gives charter one or any bank the right to foreclose on a mortgage is the fact that the mortgage is no the mortgage or mcg a hen or hunter and then after both banks learned that those people have been deceased still need a complaint sought a judgment against the estate and no claims were flown those states are open so no claims could have been filed i don't know if that answers your question i guess what i'm trying to get is the veal to proceed in this action is because the more he document was executed there was a closing so much borrowed money someone signed a document securing that loan with the property that was an individual that they have a legal yes that is what gives the bank the right to go after the property so i guess what i'm trying to get at and i just want to understand your argument is what happens to that legal interest that exists to give you the vehicle not in the beginning but i mean  if you're protected interest in the future to do what you're doing now is the goal is probably what happened to that legal interest doesn't doesn't that still attach to somebody the view well i'm just i'm just i'm wishing between the going after the propping and going after personal liability the note so if we're only going after the property and we get a judgment a foreclosure that will extinguish the the bargain hunters rights in the land what does it do to her know what obligation i suspect that that's just going to be written off and since there's no action pending to go after the underlying note that's just going to go away realizing terms of personal judgment so there may be equity in there maybe yes and if the there's if there's a sale a curse which presumably will happen once the bank is able to foreclose and there's a sale yes what happens then if the city say margaret hunter had two payments left and she owed one thousand dollars and the house sells for fifty or  fact that no one has come forward and just as carmen said well how would they know and the only way they would have known in this case but this question is far broader than these cases and whether somebody exists here is that then and under local was addressed in at least one of these cases i know for sure perhaps in both of them it was addressed to unknown errors and sent to the mortgage yes i don't know the exact answer to the court's question but eventually i suppose it would as cheat to the state but i really can't comment on that more knowledgeable even that but it has to go somewhere which takes me to the next thing i wanted to say before we get into that thing i know we're going to spend a lot of time on this in the original argument is this the only case that you're aware o had been cases where which come close to the inquiry that you're making in one of the right to die cases this court appointed an attorney to argue in favor of a firm and so the trial court from anybody including a stranger to the case that there is a necessary party missing and that therefore the court doesn't have the right to proceed you know we're i'm going though as i'm just wondering if the or i'm barking up on a dangerous precedent in that and that's why i ask you we know where the errors are what happens in a case in which the there are there are parties in the appellate or who did not prevail and choose not to so here the urgency is because there was nobody and nobody did anything and the reason was is the fundamental failure to conform to the statute which is to name a push from represent so we have a debt of five which i talked about the court's own obligations so we are here truly as amakosa in assistance of the court of examining the court's own responsibilities at every level both thought to review and we've developed all this that they review in court as well as the circuit courts have the obligation to examine their own jurisdiction and in the absence of a just issue a controversy framed by a complaint there is no jurisdiction there is no necessary party here this court has the obligation as do well courts to act in the protection of decisions of states regardless of whether there's a party raising a question either adequately or at all and so we are not here is a change the whole calculus of the the outcome of the case austin versus royally is indeed the best case it is the most explicit case in which this court discuss the difference between in  actions if i were starting on this the research trail in this case i would start with professor michaels attacks which we have cited at page twenty of our great in which he lists  things which are much like this which are actions to quiet title actions for delinquent taxes actions to court clothes mortgages and actions for specific reforms to who enforce contracts for the sale of land and so these or in ram actions one versus speaker adds nothing to this i mean there is clearly a distinction between a living person and that person's estate there's a difference but it really doesn't add to the the fact that the let the statute was not complied with and that the more you george were representative of the morning george wasn't named and so the statute exists we were lying in the statute we don't think there has to be any statutory change and this notion of nobody has come forward and therefore what's the big deal or as they say in their brief much ado about nothing doesn't address the the seriousness of this case there isn't complete absence of jurisdiction and if even if i were not