land trust with where were the sole beneficiary and and person with the sole power of direction agrees to a contract if you will will of an amended pleading is not a basis to deny you leave to appeal provided that the opposing party is not prejudiced as a result in this case there would have been absolutely no prejudice the document correction agreements i keep reading this language and i have and i have this question depending on which part they focus on i reach a different conclusion but ultimately it seems to me it  or correct there's nothing to replace here as it was an executed in the st place and there's nothing to correct because it wasn't executed in the st place he just addressed that because it seems to me that we don't have something to replace if we don't have something to correct well the dogma correction agreement provides that it applies regardless of the necessary to replace or correct something that's missing but what are we replacing or what are we correcting well the question would would be the absence of a of a mortgage because i think that the purpose of this document is agreement is so is that where a document that is supposed to reflect the terms of the loan reflect the parties agreement yes the terms of the loan but here you're attempting to secure her refusal to enter into the agreement well i mean our initial position is that but i mean there's no there is no side document but there is a and how do we decide the terms of the agreement and obviously monthly payments are a function of the interest rate the escrow amount as it relates to taxes or  surance i mean how do we pick the just said and i think you look at the copies of the the mortgage or for the record the interest rate is not shown in the mortgage dizzy did not i seeing the corrected judicial admissions but is it not the case that if you ask questions regarding judicial admissions at trial i don't even think you need to taint contrary thank you very much i do not have any additional questions thank  transcript of the hearing after which the court denied the bank's motion or bystanders you anything like that no no we would not i don't believe i don't believe i'm not certain that the hearing was record court abused its discretion and then i in your motion every do that in the absence of a record the response to the motion is primarily argued that the  i believe there is a mystery mortgage a missing executed it's not washed in the sun so at one point somebody's head is no longer there but i believe there that you there was no admitted any mortgage in a trial court correct well no i think i don't admit that your honor we go mortgage was attached a letter and a letter was was identified in reading of that document we choir power to sign a mortgage with the terms of things specifically rejected how does that authorize that well first of all it's our position th conduct i'm showing agreement with us but even if even if she didn't agree to ask that's it that's a determination that there's nothing to prohibit it's the court fraud deleting  provision from the mortgage and requiring its execution kind of similar to any situation where played up might request certain relief and the court find that the document correction agreement and thinking this through and hearing your argument out to its logical extension then it's your position any time central terms are missing from a mortgage document the lundergan fills and it fills those typical closing there the the closing agent would execute the clause did yes i'm the final question i have is didn't the trial court find mrs lambert that was saying the inconsistency as you pointed out in the trial court find her to be credible point about this appeal is that it's an appeal of a decision made after a bench trial and it's an appeal of trial court's decision to  deny leave to amend which is based on an abuse of discretion standard so both of these standards are the most deferential standards to the trial court when  party is seeking an appeal of those decisions not only did the bank not prove its case in the trial court now on appeal it has even a more difficult standard be precisely because of deference given to the trial court on those two standards as justice hudson just pointed out and directed finding in a bench trial the court has the ability to and infected weigh the evidence and assess the credibility of the one witness who testified the defendant and determined that the bank failed to prove its case so there's nothing in this appeal and nothing said by mr gilman this morning that changes that gives grounds to change the decision by the trial court i think one of the more interesting things about this appeal of this case is you have a bank who is trying to stretch the record to make it say what it wants whether it's the document correction former miss lambert's testimony or even the idea that somehow there are supposed to be a rewriting of a document after the fact to justify or support a specific performance case i mean this is not what goes on in the legal system when the bank is a party i'm never on the side where i'm representing the lender i'm always i've always got david not calliope and the legal system is very kind to lenders whether it's the credit agreement act or the ability to prove the existence of a loan and that alone funded simply through the introduction of records  business records and even in a foreclosure case now we have a watered down means to get records in under rule one hundred and thirteen dollars and so in this case what is really unbelievable is that a bank comes into court ten years after a failed loan transaction seeking specific performance on a verified complaint that a particular mortgage attached to the st amended complaint  must be executed as as the remedy in a specific performance case and yet there is absolutely no bank witness called there is no records witness called simply to put records in and establish the bank's case you have no payoff letter you have not a single document which shows that the bank actually funded the loan and now today on appeal you get a different argument which is well using the document correction form the court could rewrite the mortgage different than the one attached to the st amended complaint and fit what the bank want to put that but that's not how specific performance works specific performance is the existence of a clear definitive agreement that's the banks required element to prove and the only testimony on that was that mrs lambert did not agree to the mortgage period she didn't agree to section three which were the escrow provisions that was what was attached to the st amended complaint verified that that was the mortgage that she was supposed to sign and that document was never put into evidence nor was any other mortgage and her unrefuted testimony that she did not agree to its terms kills the bank's case the fact that mr lampert excuse me  mr gilman says that the document could be modified just goes to further the point that there was no clear agreement that could be the subject of a specific performance case so they completely failed and then the fallback to now say that the essential document is not the mortgage but is the document correction agreement makes no sense that was signed it was exhibit one admitted into evidence but i think is the court has already picked up on that's a that's a document that she used to affect your weight when situation  or another document when a closing has actually occurred in this case the unrefuted testimony by ms lampert the only testimony is that no closing occurred she stopped it that's in our thirty three of the transcript because the mortgage document did not say what she agreed to and the clothes are left so you cannot have a document correction form that means anything when no closing  occurred and as already brought out by the court it's too you can't use it to force an agreement where there is no agreement then there was no evidence of a los misplaced inaccurate anything there was only evidence that ms lampert did not agree to the mortgage the bank completely failed to prove its case on the specific performance claim  regarding the equitable lien claim that claim failed precisely because the trial court taking into account all of the evidence and the credibility of ms lam determine that the bank failed to prove that it had funded the loan that was the reason the trial court gave buttressed by its assessment of the credibility of the one witness and the testimony which she gave the court also correctly looked at the hud which was plaintiff's the banks exhibit five c and the critical part of that document is not only is it signed not signed by the lender but the part where the lender are supposed to sign the purpose of signing is the language i have caused or will cause the funds to be dispersed in accordance with the statement there's no proof that the funding occurred because the hud was unsigned and ms lampert testified that she did not get the cash to borrow or that one would have received if a loan had funded that was the bank's obligation to prove whether to establish the specific performance case or the equitable lien case and after considering all the evidence including the credibility the trial court determined that the bank failed to prove that aspect of its case and deference must be given to the assessment of credibility so then we get to  was the bank somehow deprived of putting on its case or amending its pleadings or doing something so that would have prevailed in put aside the fact that the transcripts not in the record for the motion to file the nd amended complaint what mr gilman is not mentioning to you is consider the loyola factors this case was already four years old when the bank tried to file the nd amended complaint so yes that's a timing issue and already it is already amended once the court authority denied summary judgment wants to the bank that discovery was closed but the most important thing is on that nd amended complaint they now came out with another mortgage it's a different mortgage vacuum and then is attached to the st to it verified complaint which said this is the mortgage that should have been signed at closing now twenty eight days before trial four years later they come out with a nd different mortgage and say oh this is a mortgage mind you when they sent that letter which is exhibit d to the st amended complaint it's in the appendix that a forty that that letter to m lampert that had a letter with it which said that the mortgage was executed but not recorded so the bank kept changing its story st amended complaint one mortgage proposed nd amended complaint another mortgage letter to the bar were says it's been executed back human but we all know whether it's by lampert's testimony or even mr gilman's statements today it was never executed so there was every reason for the trial court to deny leave to file the nd amended complaint well within its discretion absolute prejudice t defendants after four years to now have a new suppose it mortgage brought into the picture twenty eight days before trial so the court ruled absolutely correctly and that granted and that case the brokers sued and put a lien on the property based on the signature of party it was a beneficiary to a land trust so the court accepted the allegations as true for purposes of the motion to dismiss and simply said there was authority of the person to find the real estate broker and that lien could be recorded against the property that's nothing like this case which was a failed loan transaction at went to trial and a failure approved by the bank so the there's no question that the trial court very experienced trial judge and judge baro i think well st of all the deposition isn't that admissible evidence at trial what she testified and so it doesn't matter what she testified in her one payment and not that not a fair and now i think the most fair analysis on that point is that there was some possibly inconsistent testimony and i'm looking at are fifty eight dollars of the trial transcript were of course she's the only one testifying and she was asked this question after the closing you stepping on the prior loans and started making payments on the subject loan is that correct answer no that is not correct question it's not correct answer it wasn't what i thought that's what i was trying to explain to you it was not what i thought that i was paying i thought that when i did not sign all of the documents on the twenty six i was under the impression that i was continuing to pay was the old loan that's the reality of the situation it was the same bank and i thought it was the old loan because i never the closer left and i never closed the so i did not i have to tell you that i didn't that so she's saying in that part of the her lawyer did not ask her a single question and when you go to trial you make decisions as the trial lawyer about what you're going to ask the witness this is an adverse witness doesn't matter same issue for a trial lawyer you stap you start you take what you have you make decisions about how far you're going to ask the witness and in this case whether it's the so called admission that mr gilman has you know pushed in his brief or or this testimony about the prior loans there is testimony by ms lampert that she that she did not get the money from the that's reflected on the that she stopped the closing and that she believed she was paying the old loans that's enough for a trial judge who's assessing credibility and weighing the evidence particularly that h particularly with the fact that all a bank has to do is bring in a business records witness and prove its case show us a wire or show us a payoff show us us something they didn't show anything so i don't think there's an  i don't agree with that i think we cited the roe case which i believe was an illinois supreme court case and i think that it's the same issue again not to belabor the point on a trial trial lawyers got to be careful and you open the door like people do with expert witnesses and then cry on appeal that it wasn't fair but you open the door and that's what happened here that they may have had a statement that they thought was good but when you put a witness on and you get into the issue you've waived your you know your position that there is a solid admission that's binding and that's the end of that so you've got testimony by ms lampert and even exhibit five see the hide they they brought that out and that document which would be the most reliable form of evidence as to whether the transaction closed and was funded says did not close did not fund all right thank you i know the question thank you agreement between the parties so in light of the fact that ms lambert acknowledged that it was after this purported closing she was making only one dollar payment instead of two interest rate change and this went on because that statement isn't that the only statement that was made at trial the statements a trial concern in also included that under the loan that she had at the time that existed prior to the failed closing it contained as grow amounts for taxes and insurance and that was one of the reasons that she had hoped to refinance so after the failed closing she continued to pay a loan which had these asco amounts it wasn't as if anything had changed the fact that it's one dollar payment two dollars payments i mean banks assign loans or sell loans i don't think that that's sufficient evidence to put a lien on someone's property i also think that that doesn't work in this case because the transaction that was supposed to happen is a consumer loan transaction a consumer mortgage and what the bank is saying that is that let's dispense with all of the protections that are in place for a consumer a mortgage a truth in lending statement a respite referred to by mr gilman and his argument and all of the other documents which are put in place before a lien is placed on the consumer's property so there's nothing equitable about the result because the bank failed to prove its case thank you egocentric no they didn't they didn't they didn't put in evidence to prove their case i don't know why that that documents which if they existed were not put into evidence and if it was a jury trial there would be as you know there would be an instruction at times where one party who has documents doesn't produce them that is likely that they were withheld i think it was the opposite here there was no closing unrefuted there were no documents to demonstrate that the loan funded and because of that the lawyer either could not were not able regardless there was nat proof that the transaction closed and therefore the bank failed to prove its case i was just another lawyer that if you look at the transcript there was one effort to impeach ms lampert which failed and i brought to the attention of the trial court that it was an improper impeachment and nothing the became of it but even if the witness had been impeached once let's just say for the sake of argument it's the whole testimony taken into account by the one party or one person in this world who gets to judge the credibility of witnesses the trial complaint they had the power had agreed to the terms of the mortgage she testified at trial that you did agree to that you're more so the next step is for the court to determine what was you agree with the parties not