they have to fight to keep their status as owner of the property ongoing the brewer case cited in the briefing that makes that much clearer the claims are true and agreed mortgage challenging the judgment and sale respective but the context of the statute and the interpreting case law provide the appropriate limits weekly is far prohibits only claim any interest in the foreclosed property or trying to overturn before let's say for example that there was another mortgage on a separate property that was not a fish you in that foreclosure city but is free but what if that's my point the sort of the examples that you raise would be claims that would not have been part of the original foreclosure claim so when you save all claims of the parties to the foreclosure not to any foreclosure i mean if you get pretty tight  thank you i do have a question you talk about the equities of not allowing the suit to go forward in a couple of different contexts but looking at one thousand five hundred and nine see specifically in the mortgage foreclosure act generally these claims they would have st of all they would have been allowed by the trial court at least as it relates to the breach of contract action had they been filed in a timely manner and i'm thinking about th trial court's ruling the others didn't bring their claims in a timely manner and they didn't know that they have these claims because they still thought that they were going to get along modification until after  americans they've had zero but your honor they've never like let me let me ask you this let me ask you this question do you have a single case that stands for the proposition that a trial courts decision to deny me was the notion that they had another avenue language to pursue those claims that was also the argument fans so wouldn't you wouldn't you agree there that was kind of  and because of it the sale was somewhat delayed is that correct and was it delayed because there was a stay or was it delayed because there was a stay and a discharge of this debt by the us and so the loan modification that you were referring to or provided that they would remain not personally liable whereas in could talk about something that's fundamentally unfair and i'm having a problem wrapping my head around the idea that your clients were discharged in bankruptcy and therefore the only item that the mortgage you could go after was the property because even if there was a deficiency judgment it was abrogated by the discharge in bankruptcy and now you want to have a modification of a loan agreement that supposedly would put your clients in a position where if they  quote unquote paid for one or no months after the modification was agreed to that they bank would have to foreclose again and again this time as it happened actually it didn't happen but it happened in a sense that there was a chain of events your clients would be scot free and would basically be entitled to possession of the property while it took a year or two to foreclose on the mortgage because according to your demand or request the modification agreement would see to it that these your clients wouldn't end up again having a personal deficiency judgment against obligation on the loan but nevertheless modify the loan so they continued it they can continue to occupy the property and it's ordinary course for service there is like the human bones of those modifications because they're not dependent on the personal obligation but suggesting to you is your claim it's unfair didn't i the bargain or not to enter into it because quote unquote since you have the ability to fairly argue that you should remain debt free that supposedly nine are there any other questions based upon any other questions were raised previously no i have no additional questions thank you ok justice brennan just one isn't the language you were seeking from bayview in the loan modification regarding personal liability in that language redundant based upon your interpretation of the  obligation to have language in there that recognize that i've probably done about this rent a loan modifications largely in the problem of contacts and whenever there is a bankruptcy discover that language is always there you usually don't even have to ask for it because the and the more of these services are trying to protect themselves from potential discharge my only sin find during that adelle but then that language is a prophylactic so to speak to mean even without it ultimately the adler's would prevail and that is the way they would likely prevail yes your honor but they shouldn't have to fight the listener with their own and the mortgage holders to agree that the discharge will be respected in the contract rather than the others having to have to fight to respect the counterclaim was brought to late nine months after the planets were aware of their cause of action and after the judgment had already been entered the sale of this property was confirmed on the member nd two thousand and fifteen and the deed lawsuit that is the federal court lawsuit was a collateral attack on the campbell county for closure judgment that found it c one hundred and fifty nine in particular the plaintiff alleged in their federal complain that as a direct and proximate result of the foreclosure the plaintiff lost their family home that nd lawsuit as i say was dismissed for lack of jurisdiction and federal court the rd lawsuit is the and nine because the vesting of title following the foreclosure sale is the complete bar to all claims as noted this language is as noted by justice jorgensen so i have four points i to make before i yield myself to questions st of all the planets remedy in this case was to appeal the final judgment that was entered in the kendall county state courthouse best for lawyers put ourselves and in the position of the two lawyers and the judge who participated in that hearing on the one hand we have the attorney for the adler say i have a counter claim i want to file my counter claim and i must file my counter claim in this foreclosure lawsuit on the other hand you have the attorney for the lender saying you don't have a counter claim and if you do have one go ahead and file it in a federal courthouse and then you have the judge who's trying to manage his his docket and his case load who has to decide whether exercise discretion and allow the counterclaim as you know he did not allow the counterclaim because bound that it had been filed to look late in the process that the two takeaway from this hearing and we have the entire transcript of that hearing attached to the point of why the two trent the two takeaways are st of all there's absolutely no agreement here between the lenders attorney and the adler's attorney about filing a subsequent lawsuit in order to have an agreement you have to have two parties and you have one attorney saying i'm insisting that i filed a counterpoint in for closure and the other attorney insisting that you shouldn't be permitted to do it there is no agreement entered into and there's no discussion about how these these two parties could avoid the application of one thousand five hundred and nine dollars which would be a bar a list these claims were specifically set out in the judgment order that can take away is that the trial court judge absolutely did not order or authorize any new lawsuit her ill my law any such reservation must be clearly it's pressed and in writing there's no such order there's no such ruling  which is somewhat similar to the claims being raised in this plaintiff lawsuit the i don't envy mr brown's position in this case since he has to argue that  c although it says all claims it doesn't mean all claims and mr brown scrambled to try and find some reason why the claims that he raises in his complaint are excluded from fifteen and see but the their family home so the claims or the argument that the instant complaint is not an attack on the foreclosure judgment i think is incorrect and certainly certainly  question i don't see there is anything on equitable about having entered summary judgment especially in a situation where the plaintiff had every opportunity to raise their claims in the initial foreclosure lawsuit and then the final point to make appellant's counsel keeps talking about a bait and switch i think that's a mischaracterization we can all read the transcript and know what these attorneys and what the judge had in mind at the time of that hearing the other point to make is that any argument if you stop a lot i think is conceded by appellate as having been waived since it wasn't raised at the trial court and it doesn't help in any event because if you do still a stop will really apply then the plaintiffs would be barred from bringing the claims in making the arguments that are being made at this time because they are completely different from what was argued at the time of the hearing in the foreclosure case when they argue that the counterplay had to be brought in the initial foreclosure lawsuit so i mean those are the horten points i think from from at police point of view and be happy to answer questions if i can since you have any questions my really my one question is i keep going back to the statute in when i asked him your opposing counsel about the language and the phrase of a bar to all claims for all parties to be for any party to the foreclosure and he raised some interesting points i am curious as to your response to that well i want  i'm sorry though i think that i think that the argument made by mr brown and i credit him with being a creative i think he's attempting to to put way would you consider that the statute that doesn't exist and it was not not intended by the legislature i don't know that it's the purpose of appellate review to do that at this stage i think maybe there could be some clever arguments being made about the about particular types of claims that might be problematic for the application of of one thousand five hundred and nine but i certainly don't think that the claims that are being raised in this case are needed in any way from the application of that  you all right so your position is it says what it says and we should not attempt to write anything else into it yeah that's a pretty i guess that's a pretty easy position to take but i guess that's where i am sure enough would you also agree we can affirm the trial court here on any of these bases who don't don't have to conclude that the court was right on both issues i think that's a lot and i think as i said previously i think looking at the case law would not apply i don't think that the i don't think that it was a contrary position argued nor do i think strictly speaking did the  obviously there's a failsafe provision if you will in terms of how we interpret raise you because we can always decline to apply at milliken the equities of the situation and i'm just looking at the transcript that you referred us to the in the transcript you know the defense attorney says apples and oranges if he wants to file a hamp suit he can do that in federal court and the trial judge though i think honestly if we look at this and we look at the the transcript i think as lawyers we know what's going on here we've got two attorneys that are being advocates for their clients position and i think we have to give you know some latitude to the fact that these attorneys are arguing  separate points of view i think there's equities of both sides i mean is it is it fair and equitable to allow the plainest to have you know waited for nine months and fail to assert their counterclaims at that late stage after judgment is entered in after a sale the properties looming i mean i think personally the the attorney who was arguing for the servicer and the bank at that hearing i think he was wrong i think that that counterclaim i think should  under all the circumstances what do you say to the argument that was raised by your opposing counsel that they didn't wait in essence five months that they moved to found a counterclaim within weeks  the bank deciding to go forward with the confirmation yet you know i'm not sure that the record is very clear on exactly what what happened at that time and we do know that there was a judge i think in and twelve and there was a substantial the lay afterwards where i believe the parties were negotiating a loan modification agreement and i guess it fell apart but i don't know that you can i don't know that you can blame you know either side for that but i do think that you can blame the planets for not having moved more promptly in terms of getting their counterclaim on file are i have no additional questions thank you thank you counsel do you have any comments relative to the implications of the bankruptcy discharge no i think i think it was more or less accurately stated that the bank is permitted to pursue their security interest after you know resolving the the personal indebtedness of the plaintiffs so i don't think there's anything that was improper or in equitable about what was happening well if the  plaintiffs or the adler's were allowed to be discharged in bankruptcy on the original contract and then in the modification be allowed not to be personally liable is that a contract i think it's still a modification i guess but i guess you could probably call it either way and so this happens on a regular basis where the banks will actually modify an agreement and a give up  the right to obtain a personal personal deficiency judgment in the event that there was a discharge yes that happens all the time just ok thank you i have no further questions  any other questions but the foreclosure claim to conclude that she would not be allowed to bring that person in three claim against the president of bank new york or against bank of new york because the bar of all claims prohibited that is obviously result and so what we have to do is look at that language income tax and give credence to your interpretation of the legislative intent behind and the legislative intent in the context is to provide finality in process please let me pursue the talent so wasn't nine months it wasn't five months it was a week that they learn that they actually have these claims because prior to that they thought that if you would be resolved with continued  or the plaintiff's position that one side discharge this in bankruptcy you cannot pursue personal liability and that that's your position right i have not misstated if that's correct that's black letter bankrupt right so here's my question i mean was there just never a meeting of the minds on what this loan modification agreement would entail no i don't because the money necessarily and we establish personal because we were in the wake of the financial crisis and language that you've been inserted probably in a form agreement didn't get in the thirty's and when their attorneys tried to fix it he couldn't get it done again likely not because of any necessarily malevolence but because they just they just weren't getting it done properly well i mean why why wouldn't a court look at that and say there just simply was no bottom line agreement here maybe one side isn't aware of the bankruptcy i mean you're here sort of letting asking us to say or to understand that look there's a lot of stuff going on and somebody dropped the ball so we should have gotten that it was just a big cluster that we didn't get that language there but that's my point nonetheless we get to this point and there's a dispute over the language what what do we make of that what i mean what we make of it is that if behavior and bony were trying to reestablish additional question thank you thank you mr brown my recollection was that the trial court two to the discharge in bankruptcy entered a deficiency judgment was that any claims that were supposed to arise out of a litigation was supposed to relate to the money that was realized upon the sale of the property that was left over after the mortgage was satisfied if in fact it was am i correct or incorrect about that i'm  available and if there is a deficiency and it was discharged in bankruptcy what exactly are we talking about money wise are we talking about negative money or nonexistent money or what so i think what i'm trying to get at is was there any funds available in the event that your clients won their account or claim would they what they collect only from the portion of the surplusage that didn't exist or would they be entitled to additional add damnum or separate and dan them regardless of whether or not are there any other questions from the panel not for me thank you thank you we will take the case under advisement and render a decision in after time thank you the proceedings are terminated