my name is sabrina rio and i'm here on behalf of the appellant defendant mr john located on pursuant to the foreclosure of his personal residence i guess realistically and in all fairness i personally feel i'm really here on behalf of numerous homeowners in this community in this district where who have met an unfair playing ground as you know mortgage foreclosures are held on a twenty  ur to daily center and there is a not always but a very common practice and what i perceive as an unfair practice of foreclosure plaintiffs to file motions to substitute plate is and in this opinion that was his attempt to attack standing in his answer but that is a separate issue from what i'm speaking of the amended complaint there's an amended complaint in this matter that was not motion before the court that was not noticed and it i cannot address that i don't think i've seen a document that says leave before however there is a found stamped amended complaint dated april seventeenth two thousand and nine that's not in the record but it is in the appleb believe it slightly changes the capacity statement where it references an assignment and that's one change in the american plate versus the complaint and then it also attaches a note that was not attached to the complaint  about a motion to include an additional case leaves the cases dorsch bank versus snake and it's at their district appellate court case and the argument as we understand from plaintiffs that this particular case the snake did include three or four language meaning that therefore it was a fine no appealable order over a two and a half almost three year period the defendant is not clear if you was the defendant pro se or the defendant's kelso but either way the defen fout five separate motions to stay the seo and the defendant even a motion to reconsider pursuant to defend his challenge to standing and in the snake case the court  specifically halte that the defendant not just that the defendant has waive standing which is i think the issue that plaintive counsel is presenting as dissimilarities in this action but the course pacifically stated that the defendant did not raise any issues pursuant to section fifteen zero eight of the illinois mortgage foreclosure law in that case in is completely different in our case yes they're similar because they're both foreclos complaint not the amended complaint so different here and here mr like it did actually argue fifteen language specifically he argued fifteen zero eight before in his response to the motion for order confirming sale provision of the illinois mortgage foreclosure law that specifically states that for the capacity statement that at that point you insert exactly you don't just say you the mortgage she can you state whether you are the holder of the indebtedness whether that that's true but but it all twelve o eight also states that you have to state what that capacity is and just stating mortgagee is not stating what that capacity is and emerges first his arms i think it's a little different because maurice was the nominee and in the complaint service or no more is not a service or no most mar is a is a basically a holding company so that you can so that lenders can get around the process of recording changes of recording and we don't dispute that i don't think we ever argue that they are that the case law does not say that standing is an affirmative defense but i think if you look at both snake and bars they raise other issues besides that the court just doesn't say that standing is the for us affirmative defense and that's the end of the issue the course specifically spells out goes goes to whether or not a defendant raises issues regarding fifteen zero eight of the illinois mortgage foreclosure law  that the defendant participated and accepted the benefits of the proceedings pursuant to those five motions to stay the seo and the defendant gave no basis every few zero under fifteen zero eight of the illinois mortgage foreclosure law so that suggests that the court is not simply saying that well if standing was not raised as an affirmative defense the issue is over seems like the court is opening a window saying look are there other issues if you challenge it under fifteen zero eight b or i'm sorry just fifteen zero eight  defense was found from your defense was was not found out however equity is a court chance record is a court of equity fairness and justice and if you look at the defendant's response to the motion for order to confirm sale the defendant does raise these issues and part of defendants fifteen defendant challenges fifteen zero eight b before specifically which which provides that if it is basically inequitable for the quarter in entered the good faith fanfare leered dealing does not actually a five this is per se however however that does not that does not mean that a party when parties are negotiating that applications on various numerous times mr levy completed those applications and each time there were denials for for reasons that simply were inaccurate i understand that plaintiff position i that there is no obligation for a lender to modify a loan and that part is true however if a lender is modifying loans which the that that particular lender is as most lenders out are nowadays lender has to be fair in how it decides what laws to modify and what not and when a lender begins to switch bate what's income and turn that into an expense and begin to change the amount of made bogus responses responses ranging from for example mr lucky received child support ok because the biological because he has custody of the child the biological mother does not the biological pays him child support and plaintiffs put the child support on the expense side of this bridge sheet so if you want easier although i meant the end of the day that's what these cases are all about they're about paying off your mortgage and when somebody feels after more than a mortgage payment for a period of two with a plaintive doesn't have standing the net me said any future time after individuals in effect get someone else who actually has standing can come back and sue the same barber for the exact same thing is that fair is that just is that even reasonable and there's also an affidavit that was attached as well yes complaint there is in the record april third two thousand and nine order which is specifically states that this matter coming be heard on plaintiff's motion and then the complaint you notice having been given so the court made note that rulings they did not i believe one of the justices asked a question they did not raise their failure to file an answer to the amended complaint in the trial court that was raised for the first time before your honor's so i believe that issue would be  waived it was also noted what kind of time elapsed from from the time the briefing schedule on the summary judgment was entered on april seventeenth two thousand and nine until defense counsel first appeared in this case on her motion to stay the foreclosure sale that was october eight h two thousand and ten defended eighteen months within which to raise issues and that's before the sale even took place we think that this case is is very similar subject raise any affirmative defenses prior to judgment and further they failed to raise any affirmative defenses prior to the foreclosure sale in all three cases the defendants filed motions to stay the foreclosure sale and in all three issue and where the interesting issue is is the standard review review i think abuse of discretion is clearly the standard for the confirmation order and mers versus parents kind of experience that to suggest that it it goes beyond that and i think where we're similar with murs versus the art barons is normally a summary judgment going to be reviewed to no ball but i think it can only be reviewed to know it all to know based on what was before the trial court at that point in time what mers versus parents in this case have in common is the defense is one raised at the proper time if they were raised timely in response to the complaint and the court entered a summary judgment after a ruling on standing ruling on the other allegations that are now before the court it probably would be of the noble standard view but they're raising these for the first time in response to a motion confirmed sale after sale and at that point the issue is really to the court abused its discretion in not allowing them to now for the first time open up the pleading stages again and file affirmative defenses and i think merced versus barnes got it right because they said if you do then you are going to completely demolished the integrity of judicial sales because nobody will bid on a property of no confidence that the sale ever get confirmed we spoke with one of those conversations took place the only specificity that they reference and even that they don't get into the who when where is that he was working with a company called first american law center which i take it is one of these fly by night that try to help people with loan modifications and take their money and then disappear and they even know that this company's owner vet investigation he says that they told him that the mob was being approved and that the foreclosure again with respect to the motion to stay the sale which again was granted they have motion did not raise any defenses to the underlying action it didn't seek to vacate the judgment that the didn't seek to amend the answer then seek to file an answer amended complaint didn't seek to raise any affirmative defenses it only stated he was trying to reach a settlement via a loan modification with the plaintiff again he accepted the benefits of that court order and again now wants to claim there is no s clearly has and under illinois law the burden to pleading proof standing and he simply doesn't do it and even in the in the brief page fifteen appellate brief she states it was at the very least questionable at judgment as to whether plaintiff had standing at commencement of the action or if you don't have evidence that there's no standing and all you think is it is questionable that in and of itself shows that you don't know that you can't possibly prove a defense of lack of standing  even if it were not considered waived already and then page seventeen of the brief of court so the court of the plaintiff to circumvent the requirements of i am f l by commencing an action one plaintiff left standing again without any factual specific and then later attempted to cure the standing issue by the leader gaining standing in this action just doesn't make any sense to me in response in their response to the motion to approve the sale defendant states quote lockett has applied for a loan modification with plaintiffs at least five separate occasions and quote and then goes on quote plaintiff has no legal obligation to grant blocking a loan modification plaintiff does offer loan modifications and plaintiff is required to act in good faith and fair dealings in the approval or denial of a loan modification application and finally plaintiff has unreasonably delayed in approval of loan modification to look at so again you're dealing with the plaintiff yet you're in you're talking of the other side or mussing the plaintiff doesn't have any interest in this case  in the brief to the defendant indicated that he didn't respond to the summary judgment naples two thousand and nine because he believed the matter was being resolved in bankruptcy which is interesting because he didn't file bankruptcy till january eleventh two thousand a number of cases at a flea vs deal i believe is one case of cited by the defendant and and that's that's a perfect example of where a sale would make sense to vacate a sale in that case the defendants mortgage ever cancel the foreclosure sale or closure still took place went to a third party and the court said no would be inequitable to allow that sale to stand when you had accepted the money prior i think russell vs lewis a more recent case from the supreme court also resolve right to not seek to confirm or they led them down this road where we told you we were going to proceed but that's that's not present in this case that's why i said there's not any specificity and be one thing if they were alleging in any of the pleadings that they told me we were not going ahead with the sale that that changes things dramatically that there's no statement there's no allegation in response to the motion for sale there's no allegation in the apology brief that that was ever the case it's more general we were trying to do something and they kept giving us both yes reasons and we unfortunately weren't able to work something out so there's no specific standard that's been set up as far as the complying that is first that yemen is it's a very ambiguous vague you know of course we all want justice to be done but how do you define that and so i think it's kind of a you know we know when we see it and it's a case by case analysis as far as the facts you know again getting back to the negotiating a loan modification i don't think there is such a defense i mean you're the interest rate doubled this is a fixed rate thirty year seven percent you know insured by the federal government and mr look at me total of nine payments and there's currently forty payments that are passed   under fire every day i mean there's always a new new story about this that or the other but a residential foreclosure is still basically very simple did you borrow the money two digit pay it back according to its terms and in a case where it's the kind of the defense does your these days of raising lack of standing is are more than one entity seeking repayment of the obligation or more than one entity seeking to foreclose on you and you know again it's just my experience district wrote an interesting article and he said this is like i just don't buy this is it is large lenders have to resolve this amongst themselves or you have an economy in complete chaos of if you are so far off but you know if one letter there are several issues before the court course we freak our standing course with regards to the amended complaint of course with regards to fairness and equity going back to the issue of the amended complaint i believe counsel stated that the record is clear that an amended complaint was found out that the record i clear that an amended complaint was served upon the defendant the court has the record and we supplied the record to the court that we received from the district court and that record does not does not state what plain alleges none of that is clear ok if everything was so clear maybe we would not be here now so then the question becomes is it fair and equitable to have a stringent standard towards a defendant but not to have those same standards towards a foreclosure plaintiffs so if a defendant is going to be cut off by strict time blind then shouldn't that also apply to a other are you ok but the point is the same your honor civil fairness if your position is that you don't pay you don't pay the mortgage that's it if that's if it's as simple as that unwise why do we have to dish of foreclosures it's not as simple as that