inc this case began far as the relationship between the heart keys and the corporations back in two thousand and two in two thousand and three and involve the promissary note in one hundred thousand dollars promissory note and  a real estate mortgage and a number of transfers and other transactions that took place related to that in there was a total indebtedness at least a claim by the corporations as of two thousand and sixteen of about one and a half million dollars now the in two thousand and sixteen the attorney by the name of low per wrote a demand letter to the heart keys regarding this indebtedness and this mortgage it's one of the exhibits in this appeal and he demanded the repayment of the note protected by the mortgage and all the agreements between the parties and he sent t the heart keys all of the heart keys now the fact of the matter which we don't dispute is that at the time that that letter was written that the statute of limitations on the note and in the mortgages had run it was a ten year statute of limitations under illinois law and all parties agreed in judge making this in a district court agreed that what we're plying here is illinois law because that's what the the remains between the can't collect on these mortgages these notes and any obligation that we may have had to the corporations this case would have not appeared because they were probably correct at that time but that's not what the heart keys did their action for declaratory they made these incredible allegations against roger wallner who is in some way it related to the corporations and had a relationship with the heart keys and according to the heart keys he's behind all of this legal negotiations that happened in two thousand and two two thousand and three and roger wallner of course has a cases before this court also that follows this case but he's pro se and you know that's submitted to the when they make these accusations are making against wallner in waller and the corporations it's unclear which ones are accusing it one particular time their claim an unclean hands their claim an unconscionable conduct their claim illegal conduct and relationship with the harpies that he had a shan't there the corporations were sham corporations that he was laundering money he was embezzling funds he was looting the corporations they stole assets of the plaintiffs and even lethal action and because of that that brings into play this whole thing called the illinois savings clause because under illinois law they get to the root of the matter though on the under the savings closet why aren't these affirmative defense you just  a bunch of different allegations why don't it why isn't unclean hands just an affirmative defense you're going to make the argument that it's an actually i'm trying to figure out why it's not just an affirmative defense well  because i think that when you look at what the federal rule a says is that what a cause of action is or claim is is just something that you spell out of plain and simple terms that's that's all you have to say they don't use this concept cause of action anymore under the federal rules which is which one applies rule eighty you know because even if that one concept of unclean hands you may construct that way from from judge stross is questioning kind of build on that and maybe ask in a different way what is the relief that granted the declaratory judgment action contains these different allegations  he doesn't seek any monetary relief route may be true that it doesn't seek monetary belief but what they're trying to do is deny the corporations an ability to raise a cross complaint filed across a complaint and they have cause of action in the cross complaint so it's not so much what they're really think they're asking for is whether or not to nice the people that are making the entities that they're making the allegations to get the right to file across complaint if you don't have that right any entity can claim make spurious claims against other people and other parties in an action where the statute of limitations has run knowing that the statute of limitations on their c of action has run so they can say anything they want and you don't have the right point don you said at the beginning that if the action it's simple it simply stopped after seeking a declaration that the these different allegations in addition to that the the request for relief is the signing doesn't add anything to what is to what is song so i'm not sure i understand what difference it makes that in addition to the simple request for a declaratory judgment these different allegations were were added whether it makes a difference in terms of the heart he says one thing but whether or not or whether it opens the door to the corporations to make a counter complaint is what is important because the counter claim by the corporations is to seek to enforce the note of promissory note and the  restraints on the property that's a significant amount and by the hard keys raising knows issues in their declaratory judgment complaint regardless of the remedy that they're seeking that opens the door it clearly opens the door for my clients to then come forward and say well we have now a right to file across complaint in our cross complaint is seeking the same damages that we saw in the demand letter by the attorney loper so it's not so much to focus or not the heart keys win on any issue they raise is something that can be litigated what what what the corporations are merely asking is what we merely asked as main listen is to open the courthouse doors let the harkins go forward with their cause of action and let the corporations go forward with their cross complaint recount a complaint i don't think it makes any difference whether it's called across complain or counter complaint the way i read it that case problem i'm having and in addition to what judge sheppard pointed out about that when you figure out the substance of a you figure out the relief that a sought to determine whether it's equitable or legal and then you also determine what the nature of the cause of action is and i'm just not even sure that even before you get to the relief that this is a set off or counterclaim that you know i'm  not sure that that even fits into it because these are things you do the types of allegations you're talking about are things you do in response to a claim they're not independent claims in and of themselves where you would seek damages and so i don't even if the i don't even think the says that when you have the door open to be able to plead a counter claim because the other party raised an issue that relieves you of being subject to the statute of limitations here's what court is broad it doesn't even have to be factually related to the original claim itself that's how the the court said it and this whole concept of savings clause is not unique to the state of illinois the federal gov the u s supreme court has made the same kind of decision in this case cold war overseas united states and iris case two ninety five u s two forty seven saying that a taxpayer can allege any cause of action back to the government's allegations any cause of action back to the government's allegation let me ask you this i want to ask you this which i gets at the root of my problem which is if they would have brought in independent unclean hands claimed during the statute of limitations what would that have looked like and what relief would they have asked for could they do sure and what would we could have thought they could have brought any action they want from two thousand and three on forward not talking about it based on the allegations he's what you call spurious allegations in the complaint what would it have looked like had they brought it in in  complaint let's get rid of the declaratory judgment first and they bring a complaint within the statue limitations what would that of look like and what they've asked for if they would have brought a lawsuit you think you need a lawsuit lawsuit they would have made all the same allegations in a lawsuit i would presume all right then we would have been able to or my clients would have been able to filed defense to that and also file across complaint against him based on whatever they all of that the corporate labs that result i'm asking what would i'm asking to put yourself in the shoes because this statute requires you to put yourself in the shoes of what would have what they could have brought with these allegations would have been where they would have created an action and so my question is what would the action of look like is there an action on their representation and all i can do is based on the representations they made in their declared to relieve them of they could have brought all kinds of factions i mean they're claiming fraud their claim and illegal conduct their claim in a scheme a swindling scheme they're  talking about c m corporations are talking about laundering money they're talking about embezzlement they could of packed the lawsuit full of a hundred allegations as far as we can say i don't know what facts they had to bear on that because they don't cite the facts even though there is a visceral feeling that some might have and i went through that process too that look just twenty fifteen years ago that this happened and you just made this and sixteen for these agreements that happened in two thousand and three in two thousand and two why should you not be subject to the statue of limitations that's a visceral thing but harpies didn't have to say what they did and if you read the cases the concern that the supreme court had and that the seventh circuit had and that the illinois supreme court had their concern was to keep somebody from macon allegations against somebody when they know the statute of limitations has run on that person's right to respond so they can make any kind of allegations they want and then that person can't respond because then they can claim a statute of limitations that's the whole purpose of the savings clause to keep entities or parties from doing that once you make those allegations and you knew about it back then when you're making those allegations and clearly the heart cuse knew in two thousand and two and two thousand and three that these about these allegations because otherwise they couldn't have made them they're saying just the stuff that we knew back in two thousand to two thousand and three they can't wait and make those allegations later after the statute of limitations has run on my client's ability to respond then you just you're helpless an entity is helpless to respond so once they did that they didn't have to do it they didn't have to do it but they did it and they opened that door these are public documents that everybody gets exposed to they corporations have a right to come back in and say that's wrong that's not true that conduct is business we have a right to file a counter claim and that's how i want to answer that question i hope a satisfactory and well i have a minute or so yes i think you if we use the court my name is david larson i'm representing the heart peace in the heart you trust in this matter and you've read or will read my brief so i'm not going to repeat all those arguments contained in the brief judge madness and memorandum is  a very persuasive summary of that of our argument and we've got adopted mechanisms memorandum here i believe the appellate displays a fundamental misunderstanding of affirmative defenses when they can be raised and the concept of just disability affirmative defenses are raised in response to a complaint that's what the rules of civil procedure say and unclean hands is an affirmative defen demand for repayment by whippet one of the corporations it was created in two thousand and five following all of the activity here except some of the sentencing activity winslow so the note and the mortgages here were initiated and held by the state bank of winslow and filed by the party group and i'm not asking what the what the causes of action alleged or the theories that were alleged what what relief was request for for monetary damages for for instance or any kind of monetary relief nothing other than those two nothing if you if you had asserted a client in that pleading  which could warrant an award of money and you had made that request and that was included in your prayers do you agree that the saving statute would otherwise borrowed a promissory note i'm not sure the extent to support our claim to the extent of the relief the monetary relief that you could saw it in other words  assert their claim under the promissory note which was otherwise barred by limitations but a start under the promissory note as a as a set off against your monetary climbing and why you think about that reason i asked the question that's my understanding as to this the operation of the saving statute it is it is a it's a it's a shield rather than a sword it's a defensive device provided by the legislature to prevent a party from waiting until the adverse parties  cause of action is bar about limitations and then bringing their action secure in the knowledge that a counter claim could not be brought on a on the barred climate so it  monetary relief that has been brought about that point and that's my understanding too but in answer to your question the answer is i don't believe so had a claim for fraud for instance been included as a guess as part of  the declaratory judgment that would have been barred by the statute of limitations to along with everything else you know before you get started i want to kind of follow up just slightly different different issue any action the cause of which was owned by the plaintive to any action the cause of which was owned by the plaintiffs what is was that mean do you think i think that means that it is able to be brought in a court that the as a cause of action why does it distinguish between with the bizarre part i think i might know the answer but one of see if you thought about which is the action and the cause usually causes action is one phrase but here the action is separated from the cause and both of those words are separated by a comma so that the cause modifies the action i thought about that out of i've tried to figure out what affirmative defense and i understand that completely but i wonder whether the cause of what you don't know the illinois courts or the seventh circuit have recognized this the cause of which may be the underlying facts that make up the cause of action so may deal with assignment so for example if you were to assign your cause of action you didn't own the cause of that cause of action until it was actually assigned to you and so when operate necessarily you know simon unless the assignment occurred during the statute of limitations i wonder if that might be what they're getting at or maybe i'm just completely off base here i have puzzled over this and you know and i've read a lot there are a lot of cases on this right and i've read almost all of them and none of them really deal with this question try to know your best van i think i'll skip the second point is i think we covered it third point zero the third point is that back in two thousand and three roger waldner promised not to bring any not to try to enforce these notes and that's contained in paragraph thirty six of the complaint and he didn't for fourteen years not until we got this the me and december of two thousand and sixteen and the fact that fact takes away from the issue of just disability is directly related to that issue anyway that if a legal action was not eminent it was not contemplated and didn't appear to be on the horizon until they received notification of a claim that there that that was going to be brought against them which is different than notification of of defective work or knowledge of defective work i've done a fair amount of construction litigation and i can tell you most contractors know when there's a problem well before they receive a claim but the claim part of it is what triggers the just disability issue and makes the declaratory judgment  appropriate finally there is a case i came across recently it's not it deals with a lot of these issues but i don't think it's dispositive but i think i'd thought i'd brought it to the court's attention so you could take a look at it it's an  reported case central district of illinois two thousand and thirteen westlaw five four six zero two zero nine and it is do versus prison marketing  couldn't have been brought because it wasn't used to show you reference that just a few minutes ago and that gets back to that mysterious language i referenced earlier which is it seems under plain reading of the illinois statute that it's not the action the triggers the relief under the illinois saving statute it's when the cause of the action came to came about so just because i guess the implication is just because they couldn't do in two thousand and four based on those facts didn't mean they didn't own the cars itself they didn't own the uncleared you know there wasn't ownership of the unclean ants and so my question for us was judge magnussen a little off base as a result may have been right but his reasoning might have been a little bit off well my theory on this is that the cause of action that's referred to is the clearest very judgment cause of action i know the federal courts don't consider declaratory judgments a cause of action but the illinois courts do and the cause of action here accrued when the clear authority judgment became  visual which was in december of twenty sixteen so the cause was the cause and the cause of action originated in twenty sixteen that two thousand and three or four or two i don't have anything further y things judge made within the ruling even though i believe his represent the way he presented the issues as far as both parties are concerned and life everything under illinois law he doesn't analyze the arguments that were made by the parties so that's one commentary i had it seemed like just a conclusion thing that i couldn't get my hands around because he doesn't explain it everything else he lays out is a proper representation of where the part positions were number two the declaratory relief action does make claims against corporations they say that the corporations were part of a scheme that the corporations were sham corporations that that wallner looted the corporations that they stole assets of the plaintiffs from the corporations so they make a number of allegations in that declaratory relief action against the corporations while there plus the corporations but still the corporations number three  really says a lot more then it's given credit for berenger says you can even plead counter claims that are not factually related to the original claim that seems to me to be something that really opens the door to once they make those allegations that door's open you can make any counter claim that you were able to make before the statute of limitations expired the other thing the last thing is the venturi case venturi case is easily distinguished from this case then turn did not know about any cause of action at the time that austin made the demand on him and other words venturi could not have done anything they didn't know or should have known about any cause of action prior to the austin letter which was after three years after the statute of limitations for inter it was in the clear they can claim destruction limitations that's not the case here the heart k