please call the first case become apparent in the last four months namely the disappearance of the f believe lp alpine has had four months since we raised the issue in december of two thousand and thirteen to represent that it can or will comply with the requirements of an arbitration which would be to pay the bulk of the fees as is required by all of the major arbitration providers in a case involving a consumer which would make it impossible for them to function we found a motion of december to ask the court to require alp in the state that it would pay the fees and participate in their betray should it is never made such a representation on the  s being returned and well let me ask you this if this case were to be returned to the circuit court pursuant to your requests here do you now have a defendant that's judgment proof we have a company and two individuals as a practical matter i would be hard pressed to collect a judgment i think the appropriate thing to do would be to send it back the most or all before we get there i mean i'm done talking do have an individual client and my obligation to my individual client is to obtain a default judgment because we think he has a winner on the merits and make reasonable efforts to enforce it of  against alpine against the two individual defendants i will concede that based on past experience in chasing internet eighty lenders and their principals that i do not have a high probability of success  at the same time i don't have authority to dismiss the appeal and in terms of what relief we request we would request that the judgment appeal from the vacated at the very least it needs to go back to determine ok let's get back of this practical issue with the apple these are represented by counsel ah i think that to further give us an explanation as to the status of these  somebody who isn't around to perform the national arbitration for the defendant is basically requesting that the contract be reformed and then specifically enforced there were three  preventing essentially identical contracts in two of the cases the court refused to reform the contract in the one case that remains you have if you haven't settled the a court  brooke anted reformation probably by specific in force normally a condition of speech of specific and force and is first you have to have a valid contract that's what's you show in the briefs the second requirement is that you be ready willing and able to perform there is is what has happened in the last four months and there is alpine is not ready willing and able to perform cannot represent that he is and if the judgment appeal from is a party it has requested and is a pain specific and force and of a contract that it is necessary that they continue to represent that they're ready willing and able to perform and their net well your your your client was was under the terms of the the agreement was nothing to bring any claims whatsoever in the meantime hands down if that's correct right so if you've already thrown the bolt and it if it doesn't conform to the not provided for by the agreement i'm the reason of course can't be enforced is that seven months before the parties can see action the national arbitration for was enjoying from conducting consumer betray sions in the proposition that it's not supposed to be on file at the very least if the parties have a contract providing for an arbitrator who is no longer there what happened was that the court reformed the agreement and said it would appoint an  so that some judicial relief is required what is the effect of the specification of national arbitration form after they were no longer in business i think under the current case and the prickly case the answer is that there is is no effective agreement it's a question of state law it's a question of which the courts have divided and have not been able to reach a consistent result the majority view is th under normal principles of state law normally courts don't make contracts for partners the contract written can't be performed it requires the specific arbitration for it says that the arbitration shall be conducted by an under the code of procedure of the national arbitration forum in effect at the time the claim is filed a close call there isn't one but there's a distinction between who the arbitrator biased arbitrators so looking from this from the standpoint of your other typical consumer who gets into a seven hundred thirty percent wrong they don't know anything about arbitration if you read the contract it's apparent that it provides for purports to provide for consumer friendly remedy for the consumer it says for example look forward to arbitration fees will be waived by the n e f in the event you cannot afford to pay them it also says that the cost of any participatory documentary or telephone hearing if one is held at your request will be paid for so many by us the lender as provided in the ne f rules the fact that the consumer is is told that it's very simple to file a claim you can do so on lying you can do so by telephone given those facts is it appropriate to substitute  but that point neither side has asked for that relief or even contended that would be possible under state law close or in this case we have consistently maintained that there is a formation problem that and it can track to requiring the appointment of a tribunals can't be enforced if that person was not veer prior to the time the contract was entered into and frankly under circumstances that a member the lending industry should have known that any half would not be fair i also believe that the majority opinion is simply incorrect that the scent i think actually represents what the law of most states is on the subject namely we don't make contracts for parties that are in agreement simply expressing an end to arbitrary for unspecified parties and that providing for any method of appointment would not be an enforceable contract and that we are if you specify somebody who isn't a very and wasn't there when the contract was entered into that i because it was unfair and fraudulent through allow either its rules which were part of the unfairness were the arbitrators who criticised for being biased to remain for example provide as many contracts would provide help provided for severance of the arbitration agreement work laws expressly permitting substitution out of the contract expressly says is to be by and under the code of procedure it specifies a purportedly simple and easy method for the consumer to exercise the right to arbitrate if there is anything the type of person who would get a seven hundred thirty percent loan over the internet would gather from this contract it is if something goes wrong there is a simple remedy i don't have to go to court file that remedy doesn't exist and litigation is simply to appoint the arbitrator it is necessary in any of it so you have the worst of both worlds the court of procedure prohibits use except for any af the contract provides that any f is to consider the over forum rules that was that decided by the search i don't think so i think that if is if for example jams or the aaa would be appointed they would normally use their own rules and ah it says that then they have shell an important word be resolved by and under the terms of their form rules that is correct so the terms of the contract or  ely appointing an a f that is correct or and in using their form rules that is correct and this is a contract that was signed or finalized well  f was no longer in existence to perform that function vet is correct and they was quite well known throughout the lending industry the new sort of term the general case was not something they didn't receive quite a bit of right and as part of the same fair share of the provides for the arbitration there is a waiver of bringing arbitration for a class action that is correct or rather ok so if if the circuit court was wrong in its ruling ah that but a new arbitrator could be placed in the picture of what happens with the practical matter it doesn't matter because i don't have the moves of identifying class members who are proceeding on behalf of their clients as a practical matter i don't think you have a viable defendant that can stand judgement dismissing the appeal might be the most it's the dish is never too late i did not have authority from my client but i do worry if she doesn't understand that the likelihood of affirmative  insofar as the consumers concerned the supposed simplicity of proceeding before any of that is essentially the only benefit that the consumer gets out of this arbitration clause a very simple procedure that can be invoked by telephone in the event something goes wrong the other arbitration for whom those have fairly involved procedures and there's no indication certainly nothing of the defendant has put in the record that would and then we would have to see what happens and if in fact we were to try to proceed before james or aaa what would happen is that they would not process the matter until somebody who is supposed to be the defunct alpine paid their fees the matter would simply sit there in limbo on my client couldn't get a judgment couldn't arbitrate and would be deprived of any legal recourse which i do not believe is within it isn't that what happens in cases where it is that is correct but i don't think the appropriate output would be to affirm an order which alpine has basically announced if when that perform an inside and leave the case in limbo well you can get a performance many but if you don't get somebody in the room that's going to start and that's the hour and that's the arbitrary and son terms of in this the we will probably get into some discussion which will later but anybody you choose you can be an individual doesn't have to be an organisation it's a new year and so but what green says is that the that an agreement to conduct our bid arbitration on the forms code if there's a if there's a problem with that it's not enforceable it's is there it's it's still it's it's with form itself on the sidelines is valid and all that remains is the selection of  in green is an accurate statement of illinois was why it took this taking its truly example and correct specifically identify some individual as the arbitrator who has been known to the parties for many years i don't think be appropriate in that case to use section five to basically say you have to arbitrate before somebody who you haven't selected and did not express confidence there's no choice you if you read the arbitration agreement that incorporates that into ira traders are free the contract specifically says that the that whiles doesn't have to pay anything as a practical matter it will be decided in the arbitration but who who  services to people who can afford it but the whole thing is this what what's the purpose of of just tying this up and that leaving it the way it is is that the way you want to be and we don't want to think that consistently throughout this entire that that's an appropriate abco i think that please the court counsel ladies and gentlemen good morning my esteemed colleague mr adelman i know he did not mean to misspeak when justice harris asked him about what the court ordered the court  below judge time and did in fact order that arbitration proceed under it and they have code i just wanted to correct that it's been two years since the it's been two whole years since that order was issued and i think that that in all of what we have been discussing amongst ourselves i think it was just forgotten by mr adelman the case is relied upon by the plaintiff pallant here are either completely distinguishable or they were if an e f is not available or not selected and perhaps i should back up and talk a little bit about what we're here on other tracing is not a remedy any more than a court is a remedy and i heard counsel for plaintiff appellant talk about the remedy of arbitration not being available here arbitration is absolutely available as judge hyman noted as justice lou was quite asking about the greeny case out of the seventh circuit as as the seventh circuit has noted as the united states supreme court noted in the copy credit decision the n e a s inability to hear the arbitration does not make arbitration not available and in no means is arbitration a remedy but the illinois supreme court and this court have both talked about into gravity or what is in integral i hope i'm i don't know if it's it was found where a party was analyzed if they sought to deviate from the n a s and this court in quick click found into gravity where the method for appointing a substitute arbitrator was just section five was essentially displaced because it said you can either choose between the american arbitration association or n e f and if one isn't available you should choose a new one pursu the terms of this agreement here we just have designation of arbitration being conducted by by the the code of the n e f actually counsel i want to back up a little bit short the difference between this one and i have not looked at the provisions that were at issue in car and in quick like isn't it different from green for instance i think  appellant's counsel pointed out there are four references in this particular provision that's at issue on appeal first one is which rules to apply procedurally second one is where to file a claim or demand a third one is what do we do with fees if the borrower can't afford them forth one is costs of the hearing so you have four out of the approximately eleven sentences in the provision don't you think there's a difference and you are correct absolutely correct justice lou that the language in the arbitration provision in cream does differ from the language in the not bringing arbitration before the n e f and there is nothing here that supplant section five and that's the most important thing i believe the council just in this realm and mention who who's going to pay the fees that are owed by the b if it's a different a form a different dispute resolution form that will require fees to be paid a d the arbitration fees would still be paid by the defended and there was a lot of talk here about speculation about the defendant not being being available or the defendant not showing up for arbitration i cannot comment as you as everyone here can understand when i want to back up doesn't say in this provision shall waive the fee but i think that and i would submit that in the same way that the n e f is not integral as the forum that issue the arbitration forum waiving the fee and this would go this goes to the court's order to judge hymens order if that arbitration be conducted under the rules of the a f c the rules of the n e f state that the fee for a plaintiff may be discretionary by the n a r or in this case under the agreement but it's mandated because i do not want to misstate what the code's says i would be happy to provide i don't have that specific provision and i would be happy to submit that to to the court if i'm permitted i only raise this is because as you know if you had for instance any type of you can consumer arbitration can cost a lot of money and whether or not to enter into an agreement  you know the intent of the parties through some other evidentiary means i would tricia as expensive often times and it could preclude a party from bringing a claim on the fee that is why this arbitration provision is written to say that that those fees shall be waived here it has any after as the forum reading them but i think any af again as a form to that's going to participate in the service i think that you have three defendants here and they must answer to a court or an arbitrator and if they don't there will be a default judgment that the two individual defendants are very much alive and well and that the corporate defended to our knowledge is is a viable entity disputes between parties and their there but that is speculation and it also these are issues that would be we can't speculate on what would happen they would have to play out before the arbitrator because here judge heineman in and we would submit correctly ordered that arbitration proceed under the code of the n a s by an arbitrator upon whom the parties agree within twenty one days rather than pursue that route plaintiff appellants filed the appeal before this court i cannot predict who defendants will use as counsel but i will also say that know arbitration defendants are not required to have any counsel in can do the arbitration by themsel the justices could not have any more questions for me i would just like to say it's an honor to appear before the court and i will follow up on the issues raised honour's very briefly first the representation that was made in the motion for counsel to withdrawal was that counsel has recently repeatedly tried without success to contact defendants despite multiple attempts to so i don't think it's speculation if as i believe it to be the case it is material whether there is a viable defendant the can should be sent back to the trial court for the purpose of the you also can't do it without a business who is you looking at the end not the beginning i do not see your honor however we have been going to basically friday pro bono average trader who is going to apply the rules of an organization we don't know what we can't conjecture as to what the future would be to happen so let's let's not be theoretical about the idea here is what we want to be a walkout with is an idea how do we get an arbitrator place we could do it that's a possibility you're suggesting we're  already been cases because of the questioning of what interval means and how you define it and how you preserve it there are splits among courts that are profound right now so the thing is we arbitration these arbitration for the standard arbitration forums will not process and arbitration claim where the defendant is required to pay the fees unless the defendant pays the fees it just stays in limbo you possible to the rules it would have to be somebody is in partnership or an entity that has a contract an agreement one with an a f that would be correct except there are no such persons in fact given the reason for any have schooling out of business i don't think anybody would come forward and say i have a contract with any half to adjudicate consumer disputes right so would that seem that the courts  rules of that of an entity that has has got out of the the consumer arbitration business under question of the circumstances what if james or aaa says i won't do it we have our own rules or they have due process protocols they have measures to protect consumers they're not going to just adopt the any are fools and you keep saying they go they went out of business but that's why i'm asking your clarification they didn't go out of business they've just been enjoined from accepting new consumer cases that is correct ok so there are actually a lot of people who won't who could do this because they're not doing something else and in other words what they were doing they can't do i so you're free to do something else i think that any fear ever traders have found employment with other trade boon was using their rules if you keep speculating this case on  i think that the way to end the speculation is to either remained and require the defendant to basically show up or simply hold rather i think the green is reciting the fact that nobody raised the formation problem in that case i'd look at the recent wasn't racist and i'm talking about the same country we're talking about the same agree well except that if a party doesn't raise the question of whether it is subject to being set aside because of the formation problem in one case that cases that precedent for the proposition that you can't do that were this race so before this court i understand you only bring up the fact that since you don't have a viable defendant here with pockets shallow deep or otherwise it might be best that this court cannot decide