the attorneys who are going to argue please approach the bench and interviews yourself proceed good morning as we hear once again i'm his case i'd like to start off by saying i think this matter is fairly simple i'd like to primarily focus for the court's attention on the situation of judge dress yourself as to how we have jurisdiction of these matters where your honor as a final order entered there were several appeals they were consolidated into this current appeal therefore  then subsequent to that notice of appeal while this was still pending there was an order entered which is a three o seven a five order regarding a receiver and the only issue that can be raised in that appeal deals with those issues that is what the first district has helped and do it airline canteen myrtus that was the only issue we cannot pick and choose what was then a three o seven appeal home in the prior feel that we ruled on yes it was wrong as with actually you're on a ruled upon i'm sure you're well aware that dealt with a contempt for the appointment of a receiver so you had two different products which would give it interlock a tory status therefore right therefore the only issue that could have been raised at that time dealt with the contempt receiver well but doesn't the idea that this the trial or the court to intervene judgment against your client was now proceeding to uphold your client in contempt and then also to eleven why couldn't there have been proud up in here three zero seven three or four p five appeal two reasons your honor one it was already pending in front of this court so in essence what i would have to do is take an argument from this appeal and then raise it over here well i can't by this case i think we've done a lot of that i could be mistaken but but i'm glad i don't think that's appropriate that i would take something from one appeal and then raise it in another appeal which was on an expe on one issue well but if i did so and i believe the first district is clear that it must only be on this issue we can't have piecemeal you can't raise other issues in ten or under the  be raising other issues in that appeal i think we were limited to only raising those issues in addition your honor there was nothing in the record on that expedited appeal as you may recall we only had a few weeks to put the matter together well actually that's this matter was pending in front of this court on a parallel path so i guess i don't believe we are entitled or permitted to raise an issue in this appeal and then raise it contemporaneously in another appeal the discussion is whether you're committed the question is is whether or not you're required it's typed up it's fairly straightforward he would think because it was quite another appeal your honor and i believe the first district does provide that we are limited in what we can bring in that type of a proceeding that's why it was not raised it would have only  betsy that it gets the issue should we have raised the carve out then also in the contempt appeal and i would argue i would not be permitted to do so if we then take a look at the actual underpinning of this decision the bank proposed that to fourteen zero one and two fourteen or two are identical therefore if a ruling under two fourteen zero one provides that the case must be brought and you're not entitled to a substitut judgment or two for two no one you're not entitled to one hundred on your two fourteen zero two however when we raise that issue and move for the substitution of judge we were not given an opportunity to brief the matter if all we do is take a look at the statutes and if we just take a look at the statutes then i think your honour's will have to rule that two fourteen zero two is not identical to two fourteen zero one two fourteen zero one provides civically the proceeding must the new petition must be brought in the same proceeding it must it's not permissive it's mandatory to fourteen no two is from diametrically opposed you may bring it in the same court at the same proceeding the same court however if you want to bring it in another county that's ok too depending on where the defendant resigns also under section g you can have parallel or conc proceedings so if we just take a look at the statute it must be brought there for decades has already been ruled has been litigated have a trying to unseat a verdict two fourteen zero two is different it starts with a new pleading a citation then it must be served personally then there's an entirely new set of rules and bylaws which must be followed in order to prosecute and defend that case two for two no one doesn't have any of those parameters so if it's a new proceeding then the plaintiff end of the fennec should begin titled to take an associate that is our right that is the plaintiffs right what's happened here is a point of went back into the very same courtroom where the case was still pending the foreclosure case was still pending at that time now we know that the circuit court provides a supplementary proceedings or to be judgment that's brought into fourteen no one before a judge sherlock if there's a judgment entered in the municipal division that goes into two fourteen zero one two if is a judgment entered into law deficient it goes room twenty five zero three in front of judge white you suggesting that we write up a decision that lies only to the first district of county absolutely not your honor however let's assume it's a downstate case and they file it plaintiff files it in the same proceeding in front of the same judge who just gave them the judgment well isn't a defendant entitle to take it such a titian a judge why it's a plaintiff have the sole right to decide where this case is pending they have the sole right if this decision is affirmed they have the sole right to say this is where the case is going to go you have no rights so if they decided the case was to be filed in du page county let's assume they had done that would we have had a right to take a substitution a judge i would argue that we would correct because then i have no rights the plaintiff chooses sold it again it is a new proceeding new form new pleading new service new set of rules so again if we take this argument here use use an analogy if the bank had obtained a judgment and a lot of vision for a million dollars and then they went to enforce that judgment that judgment by operation of the rules in the daily senate will automatically go to judge white he will enforce that trust and the citation will be returnable in front of judge white now if the plaintiff decides geez i really don't want to be in front of judge white i want to take a substitution a judge they have that right i've seen it done and if i'm the defendant and i show up and i'm in front of judge white and i don't want to be there i have a right to take a substitution or judge the same judgment it just came from a different division of the courthouse so in essence if this issue was affirmed if you that section is strapped if we do anything contest and that's the main word i think i'd like to focus on we had talent size that word in our brief if we can test the proceeding we are hit with a ninety four million dollar penalty that's all we have to do so if the plaintiffs were to file a complaint and let's assume they said something that was erroneous improper either intentionally or unintentionally if we contest that proceeding we're hit with a ninety four million dollar penalty because it doesn't say anything of a contest hinder or delay so if we just read the basic plain words we get hit it doesn't have to affect the collateral it doesn't have to actually cause damage to the plaintiff but if we can test the proceeding we are hit with the penalty and we use the example in our brief if the matter was to be confirmed and the bank had been  one million dollars as opposed to one hundred million dollars and we contested that we could van be hit with a penalty just for contesting that issue so i think the the bracer replete with an issue that's not what happened right now bit maybe it was perhaps two months on the receiver issue but that doesn't correlate to a ninety four million dollar penalty it isn't as if the bank was damaged ninety four million dollars because of a two month delay in the receiver so i think that it is to take care of that so they actually i think delayed it longer than we may have but the issue that you get into with the penalty is doesn't correlate at all to the effect upon the collateral and here it does not and in fact when they move for summary judgment thank you thank you just waived for two separate and independent reasons first that wasn't raised as part of the second appeal which this court ruled in march of this year on the contempt in receivership right and second the s o j was way because the notice of appeal was filed too late because there post trial motions to dock constitute a proper postville motion going first to the waiver by not having raised that not get a chance obviously to respond but i'd like to respond now first of all in mergers at the first district nine hundred seventy eight case the court said that on the three zero seven appeal and your honor justice quinn you were correct it wasn't just a three or seven appealing receiver it was as well a three or four of the five appeal on a fine you can towns but emerge as the court said that it murderous the court said we can look now just at the preliminary injunction but we can look at other matters here and they looked at findings to the extent they determined the preliminary injunction remedy that's completely consistent with the case we said that sara bush lincoln which was decided in one nine hundred ninety four where the court said that to the extent an other or earlier order is bear injunction order for which there's an interlocutory appeal but any other order that would be outcome determinative here it's obvious that the s o g a ruling would have been outcome determinative in the second appeal it was not raised and it could have been as for the record anything that would have been needed to raise that issue of the s o g a in the second appeal could have easily been done with an affidavit and a record which was provided in the case of a motion by the court and i think there's even a court rule providing for namely the material for it is very minor in the motion and the transcript itself it could have easily been raised and wasn't i think they do contest the basic principle that if a matter could've been raised and wasn't raised it's way if you look through their reply brief they don't challenge step a sick principle we cite the term for in cases for that and i think that to the extent amanda is outcome determinative but the first district decision emerges and in turn or and with the sarah bush lincoln decision they clearly could have raised that and didn't and thereby waived anything which would have been outcome determinative in that second appeal and those would have been namely the s o g a ruling as well as the december twenty second two thousand  j and the car about guarantee and that is they just now appeal within thirty days of the december twenty second two thousand and ten order which contained the rule three or four a fine they found the december twenty second two thousand and ten order by vacating explaining that there is no just reason to delay in force upon or appeal the judgment or it does not in any way attack the judgment order and we cite numerous cases in our brief that to it's specifically termed to be a supplementary proceeding it supplements the entry of the judgment and arose from force from of the judgment it does not as is the case in a civil action determine the rights between the pardons that's already been determined in the judgment this is just in for some of the judgement to one or one which gives the right to a substitution of judgment applies only in a new civil action proceeding is not a new civil action it's a supplementary proceeding and the cases we cite that we have raised with a lower court namely a state of rice and green versus our own telegraph deal with whether a supplement terri proceeding is in a state of rice it was to remove a co executor the court found that that supplemented the underlying testamentary action and was not a new proceeding and similarly in cream versus on telegraph there was a removal issue to bankruptcy court a court there found that a supplementary proceeding could now be segregated from the underlying action and removed namely it's part of the main proceeding therefore since it's part of the main proceeding it's not a new civil action under one zero zero one zero nine and s o j counsel made a lot which is under general order number one is for a lot of asian cases in chancery it stays in front of the judge who is hearing the matter which is exactly what we did and exactly what rule two seven sevent provides namely you can file it in the same proceeding in the same court and even if it did supposed to be in front of some other judge as we said in our brief page forty five general order number one of the circuit court says that being before a judge in the wrong division will not affect the result in this court and other apart courts have ruled numerous times to that effect of we say at page forty five of our brief thousand and five a citation issued on september twenty ninth two thousand and five a petition for contempt was filed for refusal to convey a three story building and that sense it's very similar to the history of this case and then two months later on november twenty ninth two thousand and five and s o j was requested the court hel ruling is that the sec a sion itself which resulted in the rule to show cause is also not a new proceeding since it's not a new proceeding there really is no basis for case as you'll ever get that the defendants had an opportunity to test the waters with judge brennan in the circuit court they have been before here for over a year at the time that s o j was  just like any other contract in fact in lincoln park decision first district nine hundred eighty nine the court even though held a provision of a guarantee in which the lender did not have to act in a commercially reasonable if that's the parties agreement it's an forcible here even in this court's first opinion it said that the gerund that was that a guarantee isn't a forcible in accordance with  terms we say cases in fact we said are all the cases we can find from any other jurisdiction that have ever dealt with this issue and those cases uniformly up hold the carve out viability but it's the access to the co at all and then it means when you make a non recourse loan it's the idea is you can get to the collateral quickly and efficiently with no roadblocks here it's the real estate pledged in favor of very substantial wrong one is this council i believe we are this kids and as far as contesting or hindering is in their response to the motion to foreclose and appoint receiver and they yes and this court ruled citing to a federal court decision similarly as we said hello here it said of the homelike that the quality of them instrument provided by the borrower is not a factor in determining to appoint a receiver that's in the before the court for approval or the court looks at the value of the sale and will pass on that and so it's it's not really an issue the court will have a chance to look at any ridiculous situation before there's a foreclosure but i like to say one other thing to hear this case here in t v if you look at the wording of it starts out first as a guarantee of the whole world and then there's a qualification that you lose when you take one of the actions listed if this guarantee had been for one hundred percent of the value of the loan there would be no issue here today those kind of guarantees are upheld time after time after time path he's obviously a sophisticated investor the court has found as much in the prior opinions where he triggered that increase in the amount it should be enforced in accordance with the terms consistent with all the other decision of this court and guarantees and there was there was no penalty here it was for the amount of them wrong all the cases they cited involving a penalty none of which dealt with a guaranteed all were some for some money in addition to the mt at issue on the contract here is just the base amount of the long and the call the courts that have looked at carve out have found that simply the actual damages it's not a penalty and so we think that the kind of a decision should be up health but the court only gets to that if the fines it hasn't gone away and quite welcome sir you have a precious five minutes and i will be less than five minutes if i'm sure your honour's pa close attention to what was previously stated by opposing counsel and if we pay close attention will notice that opposing counsel intentionally is using the word new proceeding and new case interchangeably as if t fourteen zero one says new proceeding two fourteen o two says new proceeding again as we pointed out in our briefs there are diametrically opposed suppositions and two fourteen you know one is called entitled relief from judgments two for seventy seven is when the proceeding may be commence so it's right in the title that is a new proceeding the words are not interchangeable the legislature did not intend for them to be of them to be interchangeable so of course this is a new proceeding the statute tells us it's a new forsee again we have the citation service and a whole host of new rules so when they say it's be let's us all pay attention to what they're saying and what the statutes actually say i also want to cite to the airline canteen case airline canteen states that the ruling prior motion refusing a change of venue from the judge who ruled on the request for interrupt interlocutory relief cannot be considered any rule three zero seven appeal from that ruling because such a pill does not open the door to a general review of all orders entered by the trial court up to that date so i think your honour's your mind canting case is supportive of our position opposing counsel also says that because this issue in this case may have been filed say in the wrong division therefore it cannot be unwound that isn't our position if they have filed it in the wrong division and domestic relations no one objected we didn't move f vacate it based upon that so when they argue the wrong division that's not our argument as far as testing the waters again your honor they're the ones who tested the waters not outs they knew exactly where they're going to put this proceeding and they put it right in front of the same judge who was still conducting the foreclosure proceeding again we are you bet i think the statute dictates that this be considered a new proceeding and that we have an absolute right to the substitution judge