morning ladies and gentlemen our first case for argument very first is wells fargo because of what has happened to him by the wrongful actions of of the banks in this matter h s b c bank and wells fargo i strongly preach mr berry not to be here today because of his mental illness a mental illness we say that was caused in aggravated by the wrongful actions of the banks if you question if he were here today you would see that he said the african american man extremely nervous because of what he has lost h his home he's lost his job he's lost whatever money he said and he's lost his health as a result of these wrongful actions he did i tried to defend him for many many years in the in the the foreclosure case in cook county trying to tell the court about how all at all times mr barry was either current on the money that the bank say that he owed or was it very direct attempts to rectify whatever a very chancy it might be under we also very importantly before there was a final judgment in the foreclosure action attempted to file his first book affirmative defense in the case and that was under the fair housing that i go appl several hundred pages long saying how african americans were systematically discriminated against in violation of the fair housing act the court then refused to even allow us to submit that affirmative defense before that it happened i had filed an action here in in in in district court under the  was there was it answer submitted by wells fargo but not by the other a defendant h s b c bay after after us there were motions there was basically the district court the dismissed barry's f h a play in play mean that the issue was precluded after the the  affirmative defense in the foreclosure and it was summarily dismissed that is they did not allow me to submit the affirmative defense so it was never heard because they didn't give a reason judge scribbled order that says that said that varies motion to submit an affirmative defense is denied that was it at what point in the foreclosure litigation to to raise  discrimination issues i understood that you were defending against the foreclosure action on all of the grounds alleged here including discrimination whether or not you formalized them in as a as a fair housing act claim that there were you raised the issue of discrimination among other things all along is that not the case the judge seen it so you didn't raise the issue of discrimination until you attempted to file this affirmative defen defended against foreclosure by accusing the banks of discriminating against your client among other things is that not the case that's not the case here we basically we basically are that there wasn't a defense i mean that again there was no there was no counter claim and there was no affirmative defenses we basically said that number one that barry was kerger on his payments and secondly that he had one of the issues whether or not he was ever given a modification he was given a modification three times three times and and he was he was making attempts of good faith payments on his modification when when the the payments were denied ok and at what point in the foreclosure litigation did you attempt to praise discrimination as a offense not until our request to file an affirmative defense based on fair health i think i can add and at what point in the foreclosure action did that issue would you raise that issue it was it was during the redemption period after there at the in the preliminary late late in the process so we can infer that the court rejected whatever pleading you sought to submit to the court raising this affirmative defense on timeliness grounds that the chief judge what document do you file in response to a foreclosure complaint i'm sorry what kind of document pleading do you file in response to a foreclosure complaint under illinois law or cook county process know i used to do this work on the state pension but it just tell me what document you filed in response to the foreclosure complaint i filed an answer ok and did it contain an affirmative defense based on discrimination ok and so we can a further that you raised it's too late you've raised this issue too late and other words during the redemption period and that's why the state court deny your effort to essentially amend your answer to raise a defense based on the fair housing act and so we do have a preclusion issue framed up here you had an opportunity to defend based on the fair housing act and file a counter claim based on the fair housing act with your answer or at some point before entering the foreclosure judgment and the commencement of the redemption period and you didn't do that i court i did hear your order before there was a final judgment right but if you have an opportunity in state court you can't get a second opportunity in federal court that's what preclusion is all about well why understood filing that with your answer you could have done it at the beginning of the litigation you could have filed a counter claim based on the fair housing act you could have filed an affirmative defense included with your answer an affirmative defense but you waited until the redemption period to raise this issue and judge the cook county circuit court said too late eat you don't get a second chance in federal court if you phone your puts procedural opportunity in state court it precluded that's basic preclusion doctrine judge with with respect if if if you're right and you very well might be right but if you are it means that it would be almost impossible for any homeowner under any circumstances to file an action under the fair housing act what they would have to do meaning my clients who are elderly infirm so they would have to know that within thirty days of their know foreclosure complaint they would be if they felt that they were being discriminated against they would have to somehow file within that thirty day period and affirmative defense or at least a counter completely under the fair housing act with supporting documents documentation and so on to show how that elderly minority woman was discriminated its under the fair housing act that would never ever ever happen if that is the requirement for filing a fair housing act in state court it means that no one under almost any circumstances could ever file under the fair housing act which would make the filed so we're not dealing with an issue of someone failing to file within thirty days from experience i know about the circuit court in cook county will often allow defendants time  to figure this out and to file his ferment of defense before he was going to be to file his answer now why do you say had seven years you mean at any time within the seven years you could have something well seven years after the foreclosure began he was granted leave to file his answer because he originally default so at that time in two thousand and thirteen he could have raised the fair housing act claims that he purported to have instead he waited until august of twenty fourteen after the parties had the fully briefed motion for summary judgment already pending so it's very clear in this case that he had the opportunity to assert these defenses and he just blew that opportunity and it's also clear u case in our brief for that proposition and the cook county circuit court does not make it impossible to litigate these issues in the context of a foreclosure no it does not your honor f h a claims have concurrent jurisdiction in state court so they could be f counter claims they can be brought as affirmative defenses it just needs to be done timely or with the court in this case it was not untimely and leave of court was not granted that does not mean they did not have the opportunity they obviously did they just did not servicing of the loan challenges to the affidavit submitted by the trustee to adequacy of the notice of judicial sale all of these issues that were raised in the second amended complaint were previously addressed by the state court in the foreclosure action so these are clearly precluded under illinois claim preclude preclusion law which applies here do you just want to state for clarification i know that in some of the briefing plaintiff has addressed this as a matter of issue preclusion which is a slightly different doctrine and has somewhat more stringent requirements in that you have to actually you fully mitigate the issue in the prior litigation whereas claim preclusion is a broader doctrine and it applies to all claims or defenses that could have been brought in the prior action based on the same set of underlying operative facts and in this case it's very clear the same set of operative facts are the issue in the foreclosure action which was  litigated to a final judgment on the merits by a court of competent jurisdiction between the same parties here so all of the elements of claims preclude in have been met in this case there's  prior action then burns judicata would not apply for example if there were a claim that could only be brought in federal court because federal courts have exclusive jurisdiction that's the sort of claim that might be allowed to proceed but that is not the case here where again all of the issues that are raised in the second amended complaint come directly from what was addressed in the foreclosure action by the state court previously and for all of these we