because courts only decide issues briefed and argued before them it's important to sporting to see what is previously been decided in what has not been previously decided and this all started as you know with an arbitration initiated by gerard and his trust under the share purchase agreement the s b a and the arbitrator was asked to decide three issues that are relevant to us this morning first of all the purchase price of the stock in kenny industries and the arbitrator decided that that was six point nine eight nine million dollars which was the figure calculated by any industries that claim payments were due in installments and as the arbitrator said contracts to pay money in installments are breached one instalment at a time and so he said and i'm quoting here the trust is entitle to only to the unpaid installments and not to the full amount owing so gerard was not entitled to six point nine million dollars at that time but they were entitled to be paid the now the third issue rose kenny in the streets claimed it was set up before the arbitrator the arbitrator rejected that claim because there wasn't any evidence introduced at the hearing that gerard or his trust were then indebted to kenny industries so no indebtedness no sell so the arbitrator concluded in his two thousand and nine interim award that the value of the shares was six point nine eight nine million payable in installments as set forth in the s p l a that's what he wrote that was a quote and that the initial payment had become due on october one two thousand and six with additional installments in zero seven in the rate and so in the final award he well enjoying his trust then sought to have the final word confirmed in the circuit court and kenny industries opposed that request only on a very limited basis you know argued that the arbitrator had exceeded his authority in one particular that your art and his trust have against kenney industries the s p i it was an installment contract and as of january twenty ninth two thousand and ten when judge banky entered his order that was all that was due under the s neither dr nor kenny industries raised any issue before judge baccy about the stock valuation about the six point nine million or about the arbitrator's decision that it was payable in installments so there's nothing for judge baccy to decide course the courts affirm the denial of the stay but this court get it through the first appeal did not consider either whether six point nine was the correct valuation or whether the payments were due when installments well whether kenny industries had a set up because nobody raise those issues in february of two thousand and eleven gerard and his trust filed a petition to collect the money than doing and in the petition he did not claim that he had a judgment for six point nine million and by the time judge perry entered an order in june of eleventh that the two thousand and ten payment had become do and so that was included as well but the installments for the period beginning on october one two thousand and eleven and ending and twenty twenty one were not due because the s b a specifies the due dates contrary to the apple lease arguments the s b a has not disappeared and in fact bank of america i think had it right when it asked to intervene before judge paddy in it asked to intervene and i'm quoting here from its motion you know order to protect its interest issue raised by the this appeal it's wrong you didn't decide enough case fully briefed and argued before october twenty ninth two thousand and ten that kenny industries had no set off rights under an assignment the didn't occur until late october of two thousand and ten no one raised that issue no one could raise that issue and when bank of america says it's brief that this is an argument about the same set up trust but it provides that if that's done the trust still remains subject to the provisions of the s p i as do any there's legatees said and the signs of the shareholder so you can't  general rule of law and when the bank of america gerard say in their briefs here that kenny industries obligation to pay for gerard stock has been reduced to judgement they're wrong again because there's no judgement entered against kenny for six point eight nine million dollars and for one simple reason most of the amount is not yet due because it's payable in installments under the provisions of the s b a and let me go back to the language of the interim award that i quoted a couple of minutes ago the trust that there was not a lot of discussion but it was raised in many arguments gerard in the trust in the banks like all responses to the future it applies to the future applies to that extent payments to you've lost all your right of set off this is your theory would be that even yeah you could do that you know you know you get a little you lose today or you believe that you can still file and how many payments are in the future six or seven starts this whole rigamarole again and say oh by the way we have this assignment from october two thousand and four get another contract i e there was an installment do under cover one twenty twelve and it hasn't been paid and remember what they did here they didn't come in to court before judge padre and say  breach of contract they said we have a judge with us and we want to collect and they were actually reaching out to the appeal bond that had been filed and which way which made a lot of sense at that point  think would would not be permissible in the future under my view although i think under their view as articulated in their briefs they would say yes we have a judgment for six point nine million dollars and i think that because of the key point i don't think they do i think that the kenney industries has installed an obligation that's what the s b a says that's what the arbitrator said and kenny industries never disputed that  judgement there are no more rights for your doctrine here and what is your opinion i think it doesn't apply and i set out to the argument particularly with reference to the layman case and the restatement  in the reply brief i think those are directly applicable here so that the merger doctrine does not apply because again canning industries could not have raised the assignments as a defen payments that were due up through october one twenty ten the first five payments because the assignment was an existence but therefore no court can have adjudicated its effect prospectively because when all these proceedings were going on arbitration judge mackey and the first appeal of the assignment had occurred well what's your best case for saying that assignments operate in that manner because i think reasonably from just having been up for fifteen years that we see signs that not frequently frankly but that the idea that the person who's been assigned the beneficial interest of this would need to go to court to enforce it in the same way they receive as result as the most commonly see is ransom based on worry for quarters that the person who's given that beneficial interest should go to court every time a payment is due or you can wait and say well i don't want to go in every month or every six months or every year i wait until three or four are due and then i will sue but in the absence of an excel in the absence of an acceleration clause installment contracts are breached one installment at a time and therefore if defenses arrives during the course of the install bugs defenses that were not present when installments one two and three were to but haven't risen doll what instalment forces do those can be asserted and that's precisely what kenny industries wants to do here is to assert itself rights under the city take subject to defenses of that are good against the acid or and we have to remember here that bank of america is not and i'm going to use the phrase good faith put your search i know it's not quite right but the the security documents which are in the bank of america's supplemental appendix it makes specific reference to the s p i they do for well would provide that they're not they're not innocent here as they said in my reply brief they took a risk thanks to that all the time and  the opinion of my have my brother justice gallacher which was the first opinion of this court there is no set off so i think he was deciding the matter before him on the question of  lot of course those are normally reviewed as i understand it they know full there were no factual hearings here there really were no factual disputes before judge petit and it's for that reason that i believe the correct standard before you is they  dead and that i believe remains in effect it simply has not disappeared it cannot be made to disappear by the unilateral actions  the other with respect to a if release of a judgment that's exactly what happened here the appellant came before judge paddy and said look we have this punitive set off therefore we want you to release the of what prior cases were before they came to may please the court again eric macy with novak and macy will be half of the trust which the appellee this is not a contract case this is the case about a judgment in the enforcement of a judgment and whether to judgments can be set off against each other there is no contract dispute and the trust has a judgment it's indisputable in fact when january twenty ninth of two thousand and ten ok judge mackey entered a judgment and he entered a judgment and a man of approximately three million dollars and i'm quoting plus future principal installments and interest all this provided for the final work so we have a judgment for the instalments to be paid in the future based on the seven million plus dollar award found by the arbitrator so what did the arbitrator do have you ever tried to first determine the value of the trusts shares they were seven million dollars the next question was how they are to be paid and he said they are paid in the stone it's so the judgment says is you get seven million dollars x payable now as of the date of the judgment and you get the balance of the judgment but this is how i was paid so no what do i have i have the trust and enforceable judgment if i have one the next payment is due i'm not going to follow suit in arbitration it would have to be arbitration or the stock purchase agreement for the next installment i'm going to go back to court if it is not and seek to force that judgment in any way i can citation of discover assets garnishment executional property or otherwise that's how i will enforce that judgment it is not a contract right and how do i prove that even beyond what i've already hundred eighty nine thousand six hundred twenty six dollars and and her judgment against any interest industries in the realm of three million seventy four thousand eight hundred forty six dollars and ninety five cents for the date of judgment plus future princip five percent prejudgment when a liquidated amount it is nine percent and that's what the public were held and they didn't challenge any of this before didn't challenge it before a judge paddy didn't challenge it before judge mackey at no time did they come in and say wait a second  it can't be used here it is clear that the amounts if they use this so called send off it will impair the entire amount of what has already been adjudicated by the court so for that reason we believe this case is directly  directly applies to this case and they can assert rights better then be assigned it is it is law in the state for many many years that the siblings have a judgment against jerry individually the trust has judgment against a corporate entity kenn industries there is no basis for the somethings to set off against the trust they can say see you can use section four point five and i've explained why they can't but even assuming there's no merger and even assuming four point five is still in effect they still can't use the severance judgment it's clear that we have a judgment debtor situation it was a judgment entered the contract merged into the judgment contract is gone there is no longer an accountant we make arguments in the alternative that even if for whatever reason this wasn't a judgment debtor situation even as an account debtor kenny industries takes a backseat to bank of america and other creditors with so let me talk about a few additional reasons beyond the ones that mr mason mentioned that this circuit courts really should be affirmed first any industries cannot assert itself because it never obtained beneficial ownership of the august collection is in the assignment it's on page eighteen of the appendix to kenny industries eleanora law is equally clear that without beneficial ownership a party asserting a without beneficial ownership of an obligation a party cannot use the obligation to effect a set off that black letter law for closes any set off like any industries in this case ok industries has claimed that the assignment did convey beneficial ownership but there is overwhelming evidence in the assignment itself that the assigned it was only for collection purposes islamic itself says so the assignment no consideration that would be considered commensurate at all with the transfer of a seven point seven million dollars asset and the assignment gives the county siblings the right to declare a dividend expressly give them the right to declare a dividend that would allow them to recover any amounts that kenny industries might collect in the assignment furthermore even if the case of wings assignment was ambiguous in some way that ambiguity would have to be construed construed against  the second second reason for throwing the circuit court's ruling in this case is that bank of america's security interest in the amounts owed to jerry kenney your case trust has priority over any set off asserted by kenny industries section nine dash four for a of illinois version of the u c c provides that in a signed security interest receives priority over self if two things are true first the party asserting the set up must receive notice of the security interest the further set off a cruise and second the set off must arise from a different transaction for the transaction that gave rise to the contract rights assigned to the party with the security interest but both of those conditions are present here protected itself by perfecting a security interest and contrary to what those in council said notice was was giving to many industries satisfying their prior months of nine  notice was given the third war and this is crucial before any set off a crude finance gives bank of america's security interest priority over any set off finally i'd like to ask the court to keep in mind what is really going on in this case when judgment entered originally in january two thousand and ten bank of america had a first first priority perfected security interest in the amounts that kenny industries owed to gerry's trust and kenny industries had no right to set off jerry's unrelated liability to the county siblings in order to dodge its payment obligations and destroy bank from erica security interest kenny industries then manufactured tried to manufacture a belated set off through what in effect is a sham assignment of the kenny siblings judgment with good reason the law does not allow this kind of collusive trafficking address one other point that the counsel counsel may said that bank of america went into this with its eyes wide open and not in the senate took the risk but the truth of the matter is that when bank of america took its security interest it took its security interest right after the arbitrator had ruled that the county siblings could not take a side off and at that point in time the there was no kenny industries any industries had no right to take us out they had no obligation that was owing to them from jerry and there was no prospect that such an obligation would arise because the share purchase agreement had effectively been t e and at that time there were no other obligations which is why bank of america got a first priority perfected security interest only subsequently and after bank of america after kenny industries received notice of banker marcus the curate interest that that kenny industries and the case siblings colluded together to form this sham assignment to sort of leapfrog bank of america for all these reasons and reply briefly provides for installment payments i just couldn't spot the language of it when i was here before  i don't think there's any basis for this court to be true and that this was a sham assignment it certainly was not an assignment limited to  the money from gerard and then pay it off as a dividend but this provides specifically a center provide specifically that if the assignees for some reason if the kenny siblings getting payments they have to record i think we all know the odds of that are not very great it's true that if i may interrupt yes i'd like to know what's your response to the op he's argument that he can he simple things had no rights but they aren't asserting the question is this kenny industries have set off rights and it has them not because it acquired them by assignment but and you need something to set off well when we were in before the arbitrator we are right to set off at the arbitrator said yeah but no debt is still in debt at this there's nothing to set off well now in october of two thousand and ten kenny industries had the right that it's had since one thousand eighty seven under section four point five of the s b a and it down had a debt by assignment to set off and that's that is my response million change plus future installments in interest all is provided for in the final war in the final award as we've seen in a judgment for three installments  incorporated the interim award which said ya a total of six point nine million they have all of installments over fifteen years and you can't have it all down because it's not due and holism howard are they going to go back into court in october of two thousand trial and say your honor i have a judgment i want to collect it and how have they been able to cut off any industries rights to set up under the s p i by simply authority and the judge mackey did got abuse his discretion in decline to stay that's what you held you were cited a lot of facts quite appropriately but you didn't decide those issues because they weren't before  you reference to the court of civil procedure at setting up judgments we're not trying to set up a judgment against your judgment in my view kenny industries has a judgment which is trying to settle off but the rights to arrive from a contract and that contract is still here and it's still good and it can't be bade to go all the way because the bank of america and the trust w like it to be gone