if there's a lot of questions in your stand that we may give you room our time so but don't do this one did two weeks ago he wanted to see if you could make the club go round and round and mrs camp repeating everything he sa  the defendant breached the contract because they didn't perform certain acts that they aren't entitled to their fee yet the contract that your client sign required him to pay should not a fee even if they found financing on their own under with theory would you be less liable to pay the fee if you get financing through a party that he might introduce you to said again judge i'm sorry but my understanding of the contract is that now in this case she might introduce you to another party and you say because they didn't do certain work they don't and they're not in pav cool feet so what i'm asking you since your client would be required to pay a fee even if they found they own financing terms of the duties and responsibilities it was supposed to form under the the agreements they were i mean for instance they were supposed to negotiate the debt financing on behalf of of  the when the case when the parts i was handed off in terms of obtaining a loan to north america capital markets was also a mortgage broker so they're supposed to obtain a loan i mean the fact is that the fact of the matter is they handle their their response boys off to another mortgage broker parkside retain them and pay them three hundred twenty five thousand dollars to obtain a loan on their behalf i mean they have a contract formation they weren't intending  when it got toward the end of the time we were there when they made the decision to accept or reject the law they were aware as my briefs as they were put in the hobson's choice they could either were on board that here's what parkside was looking for i'm going to give you programmers i'm coming to you as a mortgage broker i'm coming to your here's this is what i want i want to nine point five or to mind our loan because i've got investors that i got to pay  for not only an acquisition loan but the pay for construction loan america so the fees were front loaded by tree mile the fees were front loaded in the sense that free might was going to get paid its fees for obtaining already didn't do anything as far as the presale i'm knows they didn't do any they didn't sell one judge i think that you know isn't that neutralize or anything that you can raise if your party didn't do anything no judge i don't think it does here's why i don't think it does i think the presale requirement is a requirement in other words the liability attaches as far as we're concerned at the point of time of three months conduct between the time of contract formation and closing other words they if that's perform some  to the damages that parkside is alleging is the damages that they paid for a construction loan that never received they paid north america capital markets for one hundred four thousand additional dollars based upon paint and one of course was for the acquisition loan and there was another contract for the construction and they're arguing that in the performance in the acquisition of this construction loan they had to do work that your client didn't have  manpower to do and that they were entitled to that money because of the work that they did it's it goes over and beyond what the mortgage broker would normally do and that therefore they were entitled to those funds not that they were getting a commission on on  under the understanding they have more money was committed and that he was going to obtain the the balance of the loan or the he was going to have to renegotiate anything with bank of the future an attempt to refinance when that wasn't the rushed and what was going on while we talk about damage is whether it was always understood that before the second phase of a loan would be committed whether from always going to some other entity that there was a requirement that fifty percent of the units would be sewn and where they'd be reached and not this never would have happened in this case because the fifty percent of the concern in terms of of what happened because what happened is they retained treatment to obtain a loan the lot of light a half or ten million dollars on their behalf they paid fees based upon that number think that is correct i think it's really something that i mean i wrote it down and i mean i wrote down for a reason that maybe i'll answer your your honest question by reading it doesn't mean i'm not explaining it well enough i might feel for some reason i must be getting all up in age i don't know if parkside would have paid fees related soley to acquisition of the property park syce park sites losses would have been minimized however the loan actually negotiated on parkside behalf place part site in the position of pain up front l to tree my and north america capital markets related to to obtaining both an acquisition and construction loan but the construction loan was never negotiate or committed to by the bank of bozeman what plane to separate was saying is that the the the the two agreements are actually one agreement both are being is the purpose of both agreements was to obtain a loan a plan i'm parkside here now only obtain a loan but obtain a lo to construct the property otherwise it doesn't make sense for the played you know if you're a plaintiff you're going in and say you know you're negotiating a contract which is what parkside in treatment was doing initially so what are your fees well mark our fees are fees three hundred twenty five thousand dollars well he's a c p a account he can do the numbers in the said three hundred twenty five thousand dollars of ten million dollars sounds like a reasonable food sure let me sign the agreement ok that's not what happened here you get down you get to the point of closing off the set as a four point four million package to acquire and develop the property he paid fees he actually paid fees based upon that representation and his understanding is that what that's what fremont was going to perform for him the fees loaded so that part side was required to pay those fees big guy was whether or not the construction loan was even ever committed to buy the defend that's not that's the grimmest required that th fees the evidence in the record is clear that tree might be dropped out of performing services whatsoever past may of two thousand and six four months before closing when north america capital markets agency issue the the problem i have a bad as is first of all if you if you read the trial court's opinion in the police brief all the cases they cite in illinois ok are they if they're not an agent  a case i think that when there's an exclusive agreement for exclusive representation both representation we're parkside be clued from going to any third party for any advice or and center any the particular relationship that this mortgage broker had with parkside or any commercial mortgage broker with parkside because of the exclusive nature of the agreement there should have been a preponderance  there's a tipping point almost exclusively in park sites favor just because of the nature of the relationship special circumstances of the parties relationship is a is one way that the illinois courts  and our supreme court has held in several occasions that when we look at the child court's finding of whether or not there was an agency relationship after a trial we can only first if it's that decision is against the manifest weight of the evidence and what that means is we can only reverse if the opposite conclusion is clearly evident not that we might go a different way but that an obstacle inclusion is clearly evident how would you state that an  there is a dominance factor there because i mean if you know more i mean if i go into a lawyer or a doctor's office you know and they tell me they give me advice of what to do or what not to do or let's go with the north american capital markets their expert knowledge of the tale loans that you don't have as a novice or even experienced by our that you're not going to be able to control because of the the knowledge asperity  you're going to build a control how they obtain the law it's we're trying to support you on this would cases are we to use that i'm not seeing either in your brief or in the other side's anything it seems you are leaning towards special circumstances to say have judge in even the argument judge the week went to the point of saying she analyzed using the used to support you well i think the case judge the first case and i is the case all the other route is yeah but that was the clear keys were there was an agency defined you can call agreement anything you want ok the fact of the matter is is the under versus commons their purpose was to obtain a loan between a mortgage broker or the bar i mean circumstances are what the functions that are actually being performed by the parties and not about what people put as labels on their agreements the other analysis i would have i mean speaking of that is and you know  there consultants ok as opposed to mortgage brokers i mean so are we just to forget about any agency issues whatsoever because they call themselves consultant agreements provided with a tremendous amount of of advantage here over parkside because parks i was locked in they couldn't go somewhere else and negotiate relationship is that a broker the borrower because the broker has the pira knowledge all the time i think that's probably one reason why the illinois legislature codified i do share responsibility storage couple things here your honor as if the court's decision rested primarily upon regions three agreements as independent and the trial court determined that the development remit was different than the financial was paid a fee of three hundred twenty five thousand dollars when closing when initial closing occurred what does it tell you about the purpose of the development loan the purpose of the ok they have three functions or four responsibilities true my hand under one of them must do a financial memorandum to provide to lenders in fact that was one of the primary things that remind did the financial model random is void to solely to obtain a lot is for it really has little or no other purpose than a penny a loan and that was one of the requirements underneath under the development agreement the other thing that i want to point out is that relates to referral fees this is one thing that was really upsetting is that out of the three hundred twenty five thousand dollars that was paid to one tree mine two hundred sixteen thousand dollars went for referral fees those his feet at the time of additional closing if he would have known that that would have been disclosed to him rob the magnitude of those fees were i mean to give you a primary example here is that two hundred sixteen thousand out of three hundred twenty five thousand dollars is approximately seventy loan under the development agreement went to a nother undisclosed party related to loan acquisition but was paid out of the the consulting fee that was paid to tree m and i submit to the court that  choice the everyone's going to have a choice ok and in terms of sort of sup to reject it's it's the parameters of that choice it's rather the choices i mean these are two terrible choices for parkside los accord as you know from having read the briefs it was a very fact intensive case and the facts were disputed he said she said situation in a lot of cases the trial court heard the testimony considered all of the documentary evidence and ruled in favor of freemont on all counts of parkside school when that decision was not against furthermore park site failed to prove that its damages were caused by anything the tree mind failed to do the evidence at trial established but the project failed because the park side because of the ladies in it's getting approval of its developers public record from the hawaii real estate commission and under hawaii law eight condo developer cannot enter into contracts to sell condominium units until that report is approved by the hawaii real estate commission in this case mr shams testimony in the testimony of everybody involved in the project was east condominiums would be jumping off the shelf that this project would sell out in seven to fourteen days based upon that the bank of bozeman made a loan to them to acquire this property and gave them six months to obtain the fifty percent resale requirement they didn't obtain the fifty percent resale requirement within six months their public report had even been approved within that six month period so the bank of bozeman extended the loan fissionable four months and it was only on the last day the day that that four month extension ended that the condo docs were approved at that point the bank of bozeman which had loaned them this money and seeing no sales the hawaii real estate commission on july thirty first two thousand and seven mr shams testified that the real estate market started to go soft in august two thousand and seven and we all know what happened in two thousand and eight and two thousand and nine in the real estate market so that is why the project failed and that is why parkside suffered at the losses it suffered not because of anything that tree mine did or failed to do addressing some of our sites arguments they claimed that under their agreements with trim on our side was required to obtain both an we made no guarantees that we would be able to obtain him any longer under the services the trim out was to provide it says obtaining senior acquisition wall experts testified at trial that an acquisition lall is different from a construction law they also testified that this was an acquisition law and that was issued a loan not surprisingly is a loan is made to somebody to acquire something the expert testified that a construction loan is a loan made to somebody in order to construct something so when mr or impact site contends that they entered into an agreement for us to obtain a construction law that is simply not the case the agreements provide that they would be entitled to their success fees if the client closes on any acquisition loan  any kind for the property no mention of a construction lol mr cole made us from tree mine testified that in a development situation like this land acquire the land because the land is what represents the value it's what you're going to develop and mr bellamy is from fremont testified that was three months focus mr park site was under time constraints they had signed the contract to purchase this land in november of two thousand and five only and there were financing contingencies that had been extended so he was desperate to obtain a loan to purchase the property in order to preserve the development opportunity that that land provided and that's why the contracts refer only to an acquisition  he says we breached our contract by fiat by failing to one of the services provided in the contract was to assist the client in the goofy adding the terms and conditions of the debt equity in minutes mezzanine financing both there was no mezzanine financing involved there was debt and equity the equity financing was provided by another entity that mr shams of parkside had a range before here that was already in place now it's possible there may have been additional equity financing required in which case fremont would have assisted with that but there was no further requirement for equity the bank of bozeman was content with the amount of equity there was absolutely no testimony no evidence in this case that our side was unhappy with the terms of the all the interest rate the term the only issue they raised was they were upset that they were under the opinion or under the impression that in addition to this initial acquisition wall there was going to be a commitment in place for  financing to fund the construction of all of the condominium units other than the two units which were financed by the initial lall and that commitment was not in place but wasn't in place because tree mine was only obligated to assist them in painting and acquisition l all for defense exhibit number three in this case which is we kind of call it our smoking gun evidence is a memorandum that north american capital markets sent to the bank of bozeman in august august twenty second of two thousand and six a month before the closing and in that memorandum this american capital said the current total committed dollar amount is approximately four point four million of the total amount requested of ten point two million i'm rounding due to time constraints related to taking down the land and the borrowers confident that once the model is built he will achieve his required fifty percent pre sale level in thirty to sixty days as a result the barrel has agreed to pay the banks one quarter percent up front fee in addition this you know that the loan will be structured as a six month note with the same terms and conditions as presented this man will be refinanced with a hole ten point two million and again i'm rounding construction rome that is expected to be committed to runs the borrower achieves the fifty percent pre sale mr champs testified at trial that these statements were true he moved a month before the closing that bank of postman had only committed to four point four million if you look at the parkside signed the agreement with north american capital was to call me it's testified the he had weekly conversations with mr shams to ask him how's it going how is the bank of both been long going is there anything that i can do for you if you need me to do anything for you parkside didn't ask them to do anything he didn't ask them to he didn't express any just satisfaction or on happiness with the l essentially identical to the terms that were set forth in the north american capital market engagement agreement because it said would you were engaging us to help you get a law loan and these are the truckers the terms o entered into a contract to perform a service and then handed off three miles to north american capital markets which it characterizes as just another more of the testimony in this case was that north american capital markets was brought into this because it specialized in loan syndications tree minded approach twenty five to thirty lenders about providing financing they were interested primarily because parkside had no prior development experience had never gone a real estate development and that's a risky proposition for a bath and so mr cool of me yes was referred to north american capital markets by someone he had prior relations with as a company that specialized in syndicating loans and well syndication is where you put together a group of banks and instead of one bank assuming the risk of a four point four million dollar roa you parse that little out amongst multiple banks that way each bank has a little exposure and they're willing to take on a little more risk if their exposure is reduced to just a piece of the law with bank of bozeman and it was bank of bozeman that put together the group of the other banks and syndicated the wall and ms respect the clear had before it defendants exhibit number the court obviously rejected that notion but defendant's exhibit number sixteen which was admitted into evidence and to which mr chance testified to is a email from birth american capital markets to bank of bozeman and it's dated september twenty second two thousand and six which is one week before the clo and it states mark mark down and was the chief credit officer back a postman who was the guy overseeing the law says maher attached is the contact list of participants the participants or the other banks but a participating in the list this is a week before the post in the last paragraph of his email he says following my email i would suggest that boseman send an email to the other banks today introducing yourselves this is a week before the close of this document i submit to lee shows but the entity that put this group of participants together was north america capital markets it wasn't bank of all those men a week before the closing bank of belsen didn't even have to contact information for these other banks more the american capital provided them with a contact information and said contact them and introduce yourself because more the american capital that's what they do they have groups of bank and this was a testimony a trial they have groups of banks syndicates that they work with and if a loan comes in and they think this is something that we because the invasion agreement refers eighteen times to lead bank there's only a lead bank in a bank syndicate and the lead bank in a bank syndicate is typically the bank that has the biggest piece of the law but not necessarily but it's the bank that it's going to except the know it's the bank whose names are going to appear on all the doc application and oxide chose to close the law all knowing based upon defendant's exhibit three back in august it was only going to be a four point four million dollar under agency argument they state that the trial used the wrong standard trial court used the right to control test which i'm abbreviated but the right to control test in determining whether there was an agency relationship and peterson vs h and r block exact same test an agency relationship has two components the principal has the right to control the manner of method in which the agent performs the work for her and the agent has the power to subject the princip financial arm was the exclusive agent but in reading the opinion in that case i did not see anything that indicated that it was the that made it a principal agent relationship the poor in that case simply stated the agreement between the parties a sad wished a relationship a principal agent the agreement itself referred to at what he as an agent and i didn't see anything in there that said because it was an exclusive contract then it's your maryland agent or if you weren't an agent you would have been an agent because it's  crystal agent relationship as a matter of law and we've cited again federal court cases which we believe are persuasive andersen vs new dimension financial services the course at a fiduciary relationship between a mortgage broker and his client does not exist as a matter of law and what i want to state it is basically it depends on the factual underpinnings involved us versus universal morals the core stated a and the court in this case having heard the evidence review the documents etc properly concluded that there was not or that they had not established by a preponderance of the evidence that there was if there was a fiduciary relationship here clients that was raised by dark side was the alleged reliance and lack of experience and knowledge of mr sha companies with annual sales of fifteen to ninety million dollars he had significant real estate investment experience this was his first development but he had purchased commercial properties condominiums the year before he had a d in the deal with tree mont he put together a three point five million dollar acquisition of a hotel in bloomington so the suggestion and million dollar construction wall from the central pacific bank for another condominium project that he was developing at the very same time he was developing the parkside project so the suggest that he was reliant on tree mom he lacked experience and knowledge is just inconsistent with the trial robinson versus merrill lynch in that case of course stated an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to the affairs and trusted to him and which as the agent has notice the principal would desire but the knowledge which you are required to disclose is information which is relevant to the affairs entrusted to the agent in this case the affairs and trusted to us were to assist him in  our fee was fully disclosed by this standard if the idea is that you have to disclose information relating to your fees that matter to remain with you or my hourly rate is two hundred eighty five dollars an hour mind you i would be willing to do it at two hundred twenty five bucks an hour because that's that's information he would want to know with my principal would if i was required to disclose that my feed or i'm going to do something with my feet after right on it that you might not like i just don't see any duty to disclose what we're going to do with a fee after we've earned it now they cited rest law which prohibits specially prohibits paying referral fee this would be a violation of response will rest but doesn't apply both experts testified that the payment of referral fees is common practice in the commercial real estate broker with us and that  point seven billion dollars of commercial real estate loans he testified that he is not aware of any will or regulation which either prohibits the payment of or for all fees or require where the loan terms were known to him on before the polls and there was no effort to renegotiate the loan terms and frankly there was no evidence not written  testimony in this case as from mr shams that he would have done anything different if he had known all he testified that they weren't disclosed to him testified that they worked for squalls to him but there's no testimony that if i had known these things i would have acted differently i would have done something different than testimonial no evidence in the record of that and to prove a claim for breach of fiduciary duty you have to establish it to be a breach and damages flowing from the breach in this case the fees were not but there's no evidence that oh if i had known this i would have done that and therefore i was damaged because if had i taken that different course of action i would not have incurred these losses or with no testimony that really quickly on the agency issue sounds like we're sort of in agreement here in terms of what the standard is for when a fiduciary relationship attaches here in illinois relating to mortgage effect unless the relationship is so clear as to be understood i submit to the court that this relationship that the exclusivity of this agreement is a key critical factor in the term the relations the relationship exists between parties their acts and other relevant circumstances for purposes of this analysis it is important no the broker is an agent who bargains or carries on the goshi ations on behalf of this principle as an intermediary between the latter and third persons and transacted business relative to ech was ition of contractual rights i think it's very clear in illinois they have when the court's analysis you focused on whether there can be control of the methodology used to obtain the loan and i don't think that's where the the the issue lies in terms of determine agency and through sure relationships the the key is the nature of the risk relationship between mortgage brokers and mars there's such a disparity of knowledge and expertise i mean that's why people go to people with specific knowledge and say here you retain this is the law i need to he has all this business experience in the world in granite he does he's a c p a but you know what he doesn't have any business experience then attaining commercial loans so i think the argument fails they have the fact that he's such an experience businessman and in any way contributes to the fact that we should deny jesus relationship and the situation the fact of the matter is he went to a company that specializes in school martial mortgage out mine point five million dollars that's what the agreement says that the plaintiff signed that he was going to take it on behalf of the north america acquisition and insuring that parkside did not overpay for the loan it received the bottom line is this agreement in the case that he was to receive two percent of of the loan acquired not two percent of construct of mine a half million dollars so my client parkside overpaid one hundred four thousand dollars based upon the clear terms of engagement letter itself that should have been that should have been caught by by treatment who had an obligation or contractual terms to review the documents and to assist and to analyze the documents on behalf of parkside