trust did not also appeal all of the foreclosure sales in this case the plaintiff cites to a case e m c mortgage of the camp which states that a judgment or foreclosure of a mortgage is not final an appeal will until after the orders entered from the sale that is correct and that does not mean that the girls in federal trust ask to appeal the sale in order to appeal the judgment the judgment of foreclosure in a foreclosure case is only final appeal after the order confirming the sale because only then are all of the issues disposed of between parties so you can appeal for closure case after the judgment before the sale in order confirming the sale you have to wait until after the sale and after the the plant the case cited by the plaintiff just does not support players argument the plaintiff also raises this argument which is a waiver argument for the first time and it's petition for rehearing which means that the plaintiffs argument is wait you can't complain about waiver when you yourself have waived the argument i find these waiver arguments they've made three different waiver arguments and if this is a rehearing all of them are away so they're complaining about waiver when they is remaining the case back to the trial court to rule on count or the issue of apportionment is still moot you don't reach that issue if you decide in favor of the bank on count or because of the numbers on the amount owed on the mortgage and the amount of the determine the issue of count or should you determine the issue of abortion and so the justice appleton's opinion that the issue portion meant does not reach because you remain in the case on count or is the correct decision  because of that is the court's decision on count or again the issue of apportionment and the issue of the receivership which we haven't even gotten to in this case was deemed moot by the trial court judge so that gerald rosen fetter trust was not allowed to conduct discovery or to have full rights to due process in the trial court on the whole second half of this case so the job or the federal trust would very much like the case to be remanded on count four so that after the receiver is the plaintiff's age so that this bad faith refusal to allow the defendant on the property and the refusal to provide the income information to the defendant in order to what was the defendant's nothing they just attacked the appraisal for failing to use the income approach in my response was i my expert has testified that he requested the income information and he testified forrester desired her as was th their fourth argument is really three different arguments their fourth argument plaintiff now requests for the first time these teleport issues specific directions on remand to allow the plaintiff the opportunity to present you have events on the issue of fair market value relating to track one interact so the playing fields raise this issue in its initial briefs so again this issue is waived on rehearing in my initial brief i requested specific instructions on remand i have a whole section entitled specific instructions on remand and the court market value of course that's a false argument because it's for sale by definition fair market value can only be established when you have a willing seller and a willing buyer if it's for sale that cannot by definition establish fair market value that's been their argument the entire then they now want to argue we want to interviews our own expert witness and have our own appraisal on fair market value that's fine i challenge them to find an appraiser who says track seven is worth nine million dollars and track one is worth one hundred fifty thousand testify to the values we did i was on a routine night and that i was on a short leash i was allowed to call my expert i was cut off i was not allowed to call the receiver at all to question the receiver about his them my response to their motion for apportionment two weeks in advance of the hearing i had my two fifty page appraisals attached to that motion at it so they had full notice that i was going to have an expert witness there that i was going to have  trustee greets the teacher for a portion that in this case that is false there is nothing in the record to support that and they even say in their brief that there is nothing in the record to support that plaintiff can't just make up evidence this argument has no basis prior to the file final so these are just plain bad arguments regardless the problem is not really the method for forcing it on its face it's the bad faith sale prices which the plaintiff bit the foreclosure sale and the resulting application of the method of  two tracks so why would they bid three hundred percent and pay over bid by six million dollars contract seven that's clear evidence of fraud to manipulate your portion of the proceeds in this case there were no other bids by third parties at all of the auctioneer announced ok we're selling track seven and the plaintiff bid eight million eight hundred fifty thousand dollars my expert testified the value attracts seven is two point eight seven five  so they overbid by six million dollars the intention of the the assumed intention of the procedure to apportion the proceeds based on the sale price the foreclosure sale price it is that those prices reflect the actual values of the properties but in sold for close fair market value i wouldn't be here argument it's because they bid two percent on track one which is owned by my client and it did three hundred percent on tracks up it should also be remembered which i repeatedly set forth in my initial brief they have no president and there's nothing in the illinois mortgage foreclosure law there's no case law setting or a procedure for apportionment where you have reason for you to defer and anyway to that method of a portion and when the plaintiff is engaging in back to visit the foreclosure sale and manipulating the a portion of the proceeds that's another reason why you should not follow that method of portion because of that the only fair way to abortion the proceeds to actually have a proceeds a portion based on actual values of the tracks this is to base it on the ratios of the fair market value which is what i propose to the case of wells fargo the mclusky but that case does not support the plans argument at all if you read that case mclusky relates to whether a defendant in a foreclosure case may file a motion any motion under thirteen so that case has absolutely no bearing on this case the plaintiff also made the same argument and its initial brief but in its initial brief it did not cite to any authority to any case law so the argument was forfeited in their brief because the argument was forfeited in their brief it was not properly raise in their brief and therefore it is waived on the petition for rehearing so again there are certain a waiver argument but there waiver argument has been wa e the the plaintiff is trying to make arguments based on cases that have no relevance to this case all the arguments are false the plaintiff itself has waived all of their waiver arguments so i find those arguments to so since there is no statute there's nothing in the illinois mortgage foreclosure law and since there is no case law on point which says that then it has to appeal the combined sale of two tracks in order to appeal the apportionment the defendant did not appeal to the sale the combined sale the two tracks because the defendant wanted to keep the admission by the plaintiff that the value of track want to track seven together are more than one million dollars again the defendant's expert testified that trac seven is only worth two point eight seven five million dollars so the overall question here is whether the plaintiffs should be allowed to purchase track one for one hundred one hundred fifty thousand dollars which is two percent of its fair market value of five point six million dollars i cited two illinois supreme court cases where the court decided that a foreclosure sale sixty six zero percent of fair market value constituted grossly inadequate value such that the sale is unconscionable and cannot be confirmed a track worth two point seven million so they overbid by six million dollars joe goes unfettered trust this is serving that track one is only worth five point six million dollars so the additional six million dollars of proceeds are there to one that would not unfairly take proceeds away from tracks because the big by the plaintiff was fraudulent track seven is only worth two point seven five the total proceeds are nine point one million dollars so if you apply  in no way are you taking proceeds the way from trackside now if you think track one needs to be resold in order to apportion the proceeds to track one then you should order track want the result you have jurors you have  as to the newness i don't think that the defendant clearly understands what move to sit summary judgment was entered by consent of all parties including this defendant on three mortgages  on tracks one through six there was a fourth mortgage that summary judgment was also granted on and this court has vacated that fourth work but there was no first three mortgages what was owed on those first three mortgages was over five million dollars tracks one through six the proceeds of the sale were two point three million dollars so as it stands there's a deficiency on those first three mortgages of over two million seven hundred thousand dollars i said as it stands that is based on the trial court of course and most of the sale proceeds between therefore if this court lets that portion that stand the appeal is moot because the first three mortgages that everybody agreed existed didn't get pay the defendant has to basically convince you to throw out the sale results and go with what he wrong leave urges is fair market value of track one well  million there they're saying we're fine with that but here's the problem he stands up here and says my appraisal is fair market value my appraisal is fair market value this court must go with fair market value guess what an appraisal is not fair market value there is no case in hell no way or any other state that says an appraisal is fair market value black's law dictionary says an appraisal is a valuation or an estimation of value property it's not fair market sale is not a forced sale they've argued that it's a for sale it's not it's pursuant to a judgment of foreclosure and sale it is sold pursuant to that judgment the defendants want to sell it no they don't are they the seller no sir they are not the seller the seller is the court appointed selling officer who in this case was an option here the court required an auctioneer not the sheriff's office to get a better price that seller is ready willing and able to sell who is the contacted by somebody that said they wanted to go onto the property and the receiver said no council again wrong again under the foreclosure law the receiver is an agent of the plaintiff in correct the receiver is an officer of the court appointed by the court the receivers conduct is not imputed to the plaintiff nor is it imputed to the defendant the receiver works for the trial judge and had i known that we are going onto the property isn't going to tell him how much the income the property but in any event it was a call to the attention of the trial court and so after this this hearing so bottom line fair market value you know the h which case of the fair market value of property is the amount of money that a purchaser willing but not obligated to buy the property would pay an owner willing but not obligated to sell the property without taking into account the values or necessities peculiar to either party in this case we came to fair market value how did we do that we had a willing seller an auctioneer who was getting paid commission we advertised extensively as you saw in the report sale the required advertising once week for three macugen county paper we advertise and saying i'm in county madison county all over the states central illinois we put it on websites we did everything that we could to get bidders there and we got forty one registered bidders there the farmland which was sold separately it brought over thirteen thousand acre that was at that time i think was the highest that farmland had brought there were at least two bi there that registered and were going to bid on the elevator operation and one of them was m an m services who leased it from the receiver during the term of the receivership we had bidders there to bid justice harris in the elevator system that takes a brain and lives it up and puts it in various varying pits it has the way scales where the crops come in get weighed when they're full of grain then they drop the green in the green pits then they weigh again that's how the elevator operation goes how much the greenway and how much to pay that is the elevator operation this track one has five and a half green pins which are split by the property line i want one of them is split by the property line that's why i say five have three guns and it's not worth anything without tract seven because that's the elevator operation i asked their appraiser did you take into account that you can't get the green in and out of these green bins we i did i took that into account you know  you own just tracked one and your own five and a half green beans it's not worth as much as farmland part of that was farmland but you've got green bins on there you can operated as an elevator operation it would cost over two million dollars to to as the performance where the right to appeal summary judgment go for you as i did was your initial bridge i we were looking for that i do not recall but that's based on the statute judge that's not this part of it if you have if you buy just that one tract and you want to sell those green vans off that there so you can have farmland it costs more to tear him down and move them than it does to buy new so basically one hundred fifty thousand is good that is the value of the property and that's that's what all of the cases of say to you know again from hewitt versus her with council says there's no there's no case law that says that the price is fair well hewitt merchants who would citing two other cases said stephen really the price paid for the property at a recent sale is the best evidence of value there are other cases in illinois that says we're not going to disturb sale results maybe it doesn't get the highest price but we're not going to disturb that there is no case that has ever said we're going to substitute in appraisal for for a ctual sale results and and we did everything we can if if you look at what was done to prepare for this sale we did everything we could to get the highest and best price for both of these properties who were in the buying you the elevator operation the banco ended up buying the your client yes we put in minimum bid on all the farmland and all that and the elevator operation hoping to get people to buy and they went over on our farmland we got more than we had to made and on the elevator operation it did it did not go over our venom  we're hoping that it would as we grow take the cash but the bottom line on this is the defendant says that there is no authority for holding a sale in the way that the sale was help again ignoring the foreclosure law five six seven thirty five file c s five fifteen fifteen zero six matters in a judgment special matters in a judgment without limited mitch without limiting the general authority and powers of the court special matters may be included in the judgment of foreclosure if sought by a party in the complaint or by separate motion such matters may include without limitation fourteen such other matters as approved by the court to ensure the sale of the real estate for the most current version favorable price for the type of real estate involved that's what we did counsel called me before hearing that we had after the judgment was in he said how how is one in seven going to be so i said i don't know we'll ask the court we go to court i said judge how's how's one in seven to be sold it splits the elevator operation into their separate debts and separate own he said i don't this is not my first rodeo i've done this before you offer i'm separately and then you offer him together and however they bring the highest price that's how they're sold and i said judge if they sell together how is the surplus going to be apportioned between the two tracks because separate debts and separate owners and brief well that seemed perfectly logical and reasonable to me because it is perfectly logical and reasonable that's how it's done to get the highest price for the property at the sale then i filed a motion for confirmation of sale with the report of sale and auctioneer offered them separately then he offered them together here's how much they brought separately here's how they brought together no objection in fact the defendant files a response to that and says i have no objection long as that's what the court says i have no objection to confirmation of the sale we go to the hearing and he consents to confirmation of the sale confirmation of the sale it's the f does five fifteen fifteen no way confirmation of sale unless the court finds that a notice required in accordance with subsection c was not given the notice of the sale to the terms of the sale were unconscionable and three the sale was conducted fraudulently or the justice of was otherwise not done the courts will enter order confirming the sale he consents to the order confirming the sale and then he says now judge i want to argue that the terms of the sale were unconscionable and that the sale was fraudulently conducted he just consented and those are the basis for objection to confirmation of the sale you can't you can't say you can't stand there and say ok this i agree that the sale was conducted fairly and that the terms of the sale work were not in conscionable and there was no fraud wait a minute now i want to argue that this was all fraudulent and in terms of the sample or unfair that's why judge laundering was taken aback i don't think he's  million one hundred thousand you know that's what it sold for the terms of the sale was it's going to be offered separately in two tracks it's going to be so offered together and however it brings the most is what it sells for and that it's going to be a portion pro rata if there is a surplus the that's the terms of the sale the bid was eight million eight hundred fifty thousand for the for the track seven with that was the elevator operation the high bid was one hundred fifty thousand for the track track one that that they're wanting to be raised and that makes nine million the total bid was nine million one hundred thousand the surplus the terms of the sale was the surplus would be pro rated based upon the two sales prices and it and it was and he's saying well two percent two percent well that that was what the sales price is what's the judge will i'm going also said there's not a shred of evidence of fraud there's absolutely no evidence of fraud the banks did were based on consultation with experts in the field and what they said is you don't want to be stuck with just track one because then you have an oil fader operation you have no way of getting a grade in and out you have no elevator operation you would have to spend over two million dollars to make it into an elevator operation and then you have an elevator operation that sets right next to another elevator operation which would be economically suicide because farmers bring their grain to the closest elevator you'd be fighting you'd be competing so our bid were based upon rational bidding as i said there were two other bidders there that were green companies they didn't bid more than one hundred fifty thousand for that track because they didn't want to be stuck with just one track and not the elevator operation which was the other trick further to say the plaintiff has fraudulently bid guess what the place is under no obligation to bid a nickel at any foreclosure sale and that would not be fraudulent if the pla does not bid at a foreclosure sale it could be that the price is at the sale is so low as to be unconscionable in the sale wouldn't be confirmed but we don't have that in this situation the sale was confirmed the report of sale was approved in the sale was confirmed if you ignore the elem mortgage foreclosure law he's not ok argument but this case is governed by the one more foreclosure law you can't go to court and say the terms of the rata divided you you said that you consented by by consenting you said that the sale is fair and now you want to argue that the sale is not fair and that doesn't work under the foreclosure law you have to appeal the order confirming the sale that's the appealable order and you can't consent to entry to the entry of the confirmation of the sale and then turn around and say well but wait i'm ok with the sale of seven out of good price and that reduces the deficiency to my clients but i think i found a way that i can get money if i bring in a invalid appraisal that didn't use the income approach and say it's worth five point six million and to convince the court that that in praise of all is fair market value th bank first as little salving in that case when there is no room for other regularity in the foreclosure proceeding however the price at which the property is sold is the conclusive measure of its value again mr rosen trader was there in a registered bit ok he has an appraisal that says that track is worth five point six million dollars he is silent when it goes for one hundred fifty thousand dollars if he believed it was worth that why didn't establishing market value and auction yields a real price while appraisals are just forecasts appraisals often produce estimates that favor their employer's interests this is a bought and paid for crazy that i would urge you to please read my priest again before you decide this case because everything he's saying is just wrong i with all due respect everything the same problem she was here last time and said you know mr graham was young and he obviously doesn't know what the simple things he was are you at the last hearing with all confidence in the world he simple means full title clearly it doesn't everything you say at the last hearing on the sample was completely wrong everything he's saying on right now is like the illinois mortgage foreclosure law and i prefer this extensively in my initial brief does not address at all the facts of this case where you have a trial court judge who sold two different properties subject to two different mortgages and a combined sale and where you have having a portion of the proceeds afterwards the one mortgage foreclosure law does not talk about a portion of proceeds anywhere because it does not think about a judge ordering the sale combined sale to property subject to doesn't say that and there's no base his law says that his arguments on the foreclosure sale establishing fair market value are clearly wrong i assume you know that the judge again did not say it sells for two percent a fair market value i've cited to you case law saying sixty percent of fair market value has been ruled by the illinois supreme supreme court as unconscionable value such that that sale could not be confirmed so i'm arguing yeah we agreed to this that combined sale for nine point one million dollars but there's no way you can confirm a sale for two percent of fair market value so how can you use that as the basis for the apportionment it's completely unfair that was my question he assert were green companies that could have bid on the track for more than one hundred seventy thousand chose not to i don't know whether they were great arguing that that reflects maybe it was an appropriate valuation no i'm not saying it's inappropriate that's what was his argument i want your response to there is no evidence in the record that there were other grain elevators at the auction he didn't bother to attempt it and introduce any evidence to that in the record there's no evidence of that the record all that's why i'm asking you the question you heard him make that assertion and you're now telling me there's nothing in the record sport right even if there weren't even if they were there it still was a sale for two percent of fair market value in a normal case where you have  the illinois more again the illinois mortgage foreclosure law doesn't contemplate selling two tracks together which are separate which are subject to two separate mortgages where you have to apportion the sale proceeds so the elmont only mortgage foreclosure law doesn't address this issue also making the false argument well if you didn't like the sale price you should have been it yourself well my clients are just all file bankruptcy so they didn't have hundreds of thousands of dollars ready to use to purchase the tracks i mean that's just a false gotcha argument is what that is because it suits a defendant runs out of money even if that's not fair market value then the argument is oh do you stop bidding at three hundred thousand dollars or three hundred thousand dollars must be the fair market buy that's just a gotcha argument that some court came up