No. 2--00--0781

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

JAMES CABRERA, UNITED BUILDING

MAINTENANCE, INC., and J.C. UNITED

BUILDING MAINTENANCE, INC.,

	Plaintiffs-Appellants,

v.

FIRST NATIONAL BANK OF WHEATON,

FLORIAN BARBIE, THEODORE J. ANSANI,

NELSON CARLO, EDWARD DIAMOND, JORD C.

HAUGE, CHRIS A. HOULD, and SOMBOON

SRIAROON,

	Defendants-Appellees.	

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Appeal from the Circuit Court

of Du Page County.

No.  98--LO--1271

Honorable

Hollis L. Webster,

Judge, Presiding.

	JUSTICE GROMETER delivered the opinion of the court:

	Plaintiffs, James Cabrera, United Building Maintenance (UBM), Inc., and J.C. United Building Maintenance (JC-UBM), Inc., appeal the order of the circuit court of Du Page County dismissing their seven-count second amended complaint

against defendants, First National Bank of Wheaton (FNB), Florian Barbie, Theodore J. Ansani, Nelson Carlo, Edward Diamond, Jord C. Hauge, Chris A. Hould,

and Somboon Sriaroon.  The trial court held res judicata precluded plaintiffs from asserting the present action.  Plaintiffs also appeal the trial court's

award of attorney fees to FNB.  For the reasons that follow, we affirm.

	Before turning to the merits of this appeal, we must address several

motions brought by the parties.  Both parties have made motions to supplement the

record on appeal.  Those motions are granted.  Additionally, plaintiffs have

moved to strike portions of FNB's reply filed in the trial court in support of its motion for attorney fees and also to strike one of the exhibits attached to the reply.  This motion is denied.  Finally, plaintiffs have moved to strike

defendants' briefs.  Plaintiff contends that FNB, by using a smaller typeface,

was able to exceed the page limitation imposed by Supreme Court Rule 341(a).  177

Ill. 2d R. 341(a).  Plaintiffs also complain that the individual defendants'

briefs used a small typeface, but concede that these briefs were probably not

excessively long.  177 Ill. 2d R. 341(a).  According to plaintiffs, the smaller

typeface allowed FNB to compress 40% more material into its 41-page brief,

resulting in the brief being effectively 56 pages long.  However, the page limit

for a brief that is not printed is 75 pages (177 Ill. 2d R. 341(a)), and FNB's

brief appears to be generated by computer rather than by a printing process. 

Thus, even accepting plaintiffs' allegations and calculations as true, FNB did

not violate this page limitation and plaintiff suffered no prejudice.  Therefore,

plaintiffs' motion to strike defendants' briefs is denied.

BACKGROUND

	On February 26, 1996, Cabrera entered into an agreement with FNB

establishing a $700,000 line of credit.  UBM and JC-UBM guaranteed the loan.  The

loan agreement stated that the loan was to mature on August 24, 1996.  The

agreement also provided that the loan was to be evidenced by a note and that

payments were to be made in accordance with the terms of the note.  The note's

maturity date was July 31, 1996.  On August 9, 1996, plaintiffs received a letter

from FNB's attorney stating that they were in default because the note had not

yet been paid.  On the same day, FNB set off approximately $430,000 from an

account maintained by UBM.

	UBM filed a bankruptcy petition seeking reorganization under chapter 11 of

the Bankruptcy Code (11 U.S.C. §1101 et seq. (1994)) on August 12, 1996, in the United States Bankruptcy Court for the Northern District of Illinois.  On August 14, 1996, UBM filed a motion seeking the authority to use cash collateral in

which FNB held a security interest.  Paragraph three of the motion stated the

following:

	"On August 9, 1996, First National Bank of Wheaton, without notice and in

contradiction of ongoing workout negotiations, set off approximately

$400,000 of Debtor's deposits and applied it toward the outstanding

balance owed the Bank."

The bankruptcy court granted the motion and also provided FNB with a replacement

lien in UBM's assets.  

	On September 13, 1996, UBM filed its bankruptcy schedules.  In one

schedule, where a debtor's personal property must be listed, UBM set forth

"[c]laims against First National Bank of Wheaton and ComEd" as contingent and

unliquidated claims.  Another schedule listed FNB as a secured creditor. 

	On October 28, 1996, UBM filed a motion in which it sought the authority

to obtain secured credit, grant priority liens, and modify the automatic stay. 

This motion contained a paragraph stating that UBM commenced the bankruptcy

action due to FNB's seizure of UBM's deposits.  Another paragraph stated that

"[t]here is currently due and owing as of October 25, 1996 First National Bank

of Wheaton under the loan and security agreement $93,828.18, plus attorneys fees

and costs of approximately $10,500, or an approximate total of $104,500."  The

purpose of this motion was to secure financing from the Gibraltar Financial

Corporation (Gibraltar) to allow UBM to meet its operating expenses.  The

agreement negotiated between UBM and Gibraltar required that Gibraltar have a

first-priority security interest in UBM's assets.  The bankruptcy court entered

an interim order approving UBM's motion on November 12, 1996.  This order

contained a finding that UBM was indebted to FNB in the amount of $93,828 plus

$11,700 for attorney fees.  On December 17, 1996, the bankruptcy court entered a final order approving UBM's motion.  This order included a finding that UBM was

indebted to FNB in the amount of $69,107.  The order also mandated that FNB's

claim be paid from the initial advance of funds made by Gibraltar.  As a result

of these orders, FNB was no longer involved in the bankruptcy proceeding. 

Instead of releasing its security interest in UBM's assets, FNB assigned the

rights it acquired in the loan transaction to UBM and JC-UBM.

	On September 23, 1997, UBM also filed a disclosure statement which

contained the following statement: 

	"UBM is in the process of evaluating its rights with regard to the conduct

of First National Bank of Wheaton.  Although UBM believes that legal

action against [FNB] may have merit, such a potential claim is not

material to UBM's ability to satisfy its Chapter 11 plan obligations."

The statement also provided that, upon confirmation of the reorganization plan,

all property of the estate not otherwise provided for shall vest in UBM free and

clear of any liens, claims, and encumbrances.  The bankruptcy court subsequently

approved UBM's reorganization on December 18, 1997, and the action was terminated

on June 13, 1998.

	Plaintiffs filed their complaint in the present action on December 8, 1998,

in the circuit court of Du Page County.  Defendants filed a motion in the

bankruptcy court seeking to bar plaintiffs' state court action.  The bankruptcy

court found that it lacked jurisdiction to rule on the motion.

	Thereafter, the trial court granted defendants' motion to dismiss, determining  holding

that plaintiffs' claims were barred by res judicata.  The court noted that UBM had acknowledged that it was indebted to FNB in the bankruptcy proceeding and

that the bankruptcy court had confirmed this debt in its orders.  The court

reasoned that plaintiffs could not now come to state court and contest the same

debt.  The court found that Cabrera and JC-UBM were privies of UBM and that the individual defendants were privies of FNB.  Accordingly, the court ruled that the

preclusive effect of the bankruptcy court's orders extended to all parties

involved in the instant suit.

	Plaintiffs filed a motion to reconsider.  As part of this motion,

plaintiffs submitted additional evidence, including documents from the bankruptcy

proceeding, an affidavit from Cabrera, and an affidavit from Cabrera's bankruptcy

attorney.  Defendants moved to strike these documents.  The court granted this

motion, noting that the evidence was not newly discovered and that plaintiffs did

not explain why it was not presented in response to defendants' motion to

dismiss.  The court then denied plaintiffs' motion to reconsider.  Subsequently,

the trial court granted FNB's request for attorney fees and costs in the amounts

of $68,594.25 and $2,802.50.  This appeal followed.

ANALYSIS

	Because this case comes to this court following a dismissal pursuant to

section 2--619 of the Civil Practice Law (735 ILCS 5/2--619 (West 1998)), our

review is de novo.  McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 681 (2000).  A motion to dismiss under section 2--619 assumes the veracity

of all well-pleaded facts.  Thompson v. Frank, 313 Ill. App. 3d 661, 663 (2000).  A court may consider all pleadings, depositions, and affidavits available. 

Thompson, 313 Ill. App. 3d at 663.  The relevant issues on review are whether any genuine issue of material fact exists that should have precluded judgment and,

if no such issues exist, whether the movant is entitled to judgment as a matter

of law.  Thompson, 313 Ill. App. 3d at 663-64.

	Because the integrity of a bankruptcy court judgment is at issue, federal law is relevant in assessing the preclusive effects of the judgment.  Barnett v. Stern, 909 F.2d 973, 977 (7th Cir. 1990); see Smith Trust & Savings Bank v. Young, 312 Ill. App. 3d 853, 856-58 (2000).  As a practical matter, however, the test employed in this state and a majority of the federal courts is substantially

similar.  See River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 312-13 (1998).  For res judicata to apply, the following elements must exist: "(1) an identity of the parties or their privies; (2) an identity of the causes of

action; and (3) a final judgment on the merits."  Conner v. Reinhard, 847 F.2d 384, 394 (7th Cir. 1988); see also River Park, Inc., 184 Ill. 2d at 302.  Res judicata bars not only claims actually decided in an earlier action but also claims that could have been asserted in the earlier action.  Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1034 (7th Cir. 1997); River Park, Inc., 184 Ill. 2d at 302.  Further, the doctrine bars claims based on facts that would have

constituted a counterclaim or defense in the earlier proceeding where successful

prosecution of the later action would either nullify the earlier judgment or

impair the rights established in the earlier action.  Henry v. Farmer City State Bank, 808 F.2d 1228, 1232-33 (7th Cir. 1986); see La Salle National Bank v. County Board of School Trustees of Du Page County, 61 Ill. 2d 524 (1975).  The court rendering the earlier judgment must have been one of competent

jurisdiction.  Sanders Confectionery Products, Inc. v. Heller Financial, Inc., 973 F.3d 474, 480 (6th Cir. 1992); Village of Maywood Board of Fire & Police Commissioners v. Department of Human Rights, 296 Ill. App. 3d 570, 578 (1998).  Several exceptions exist to the application of this doctrine.  See Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 340 (1996).  One exception is that res judicata will not bar a subsequent action where the court in the earlier action expressly

reserved the litigant's right to assert its claim at a later time.  D&K Properties Crystal Lake v. Mutual Life Insurance Co., 112 F.3d 257, 259 (7th Cir. 1997).  Another exception, which is of particular relevance to this appeal,

states that the doctrine does not apply where a limit in the subject-matter

jurisdiction of the court rendering the earlier judgment prevented the plaintiff from seeking relief.  Corestates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 198 (3d Cir. 1999); Altair Corp. v. Grand Premier Trust & Investment, Inc., 318 Ill. App. 3d 57, 63 (2000).

	In the present case, we agree with the trial court's conclusion that all

the elements of res judicata have been met.  First, sufficient identity exists between the parties in the bankruptcy action and the parties and their privies

in the current action.  UBM and FNB were parties to the bankruptcy proceedings. 

Cabrera was the sole shareholder, president, and chairman of the board of UBM and

JC-UBM.  Such a relationship is sufficient to establish that JC-UBM and Cabrera

were privies of UBM.  See Sanders Confectionery Products, Inc., 973 F.3d at 480; cf. C.I.S., Inc. v. Kann 76 Ill. App. 3d 109, 111 (1979) (considering the issue in the context of collateral estoppel).  Similarly, the individual defendants,

who are members of the bank's board of directors, are privies of FNB.  See Henry, 808 F.2d at 1235.  Second, an identity exists between the causes of action

asserted in the two proceedings.  FNB asserted, through its filing of a proof of

claim in the bankruptcy proceeding, that UBM was in debt to it as a result of the

loan transaction UBM now bases its lender-liability action upon.  Both claims

arise out of the parties' rights arising from the same transaction; both require

the construction of the same documents.  See In re Baudoin, 981 F.2d 736, 741 (5th Cir. 1993).  Further, in its complaint, UBM asserts that FNB's actions

caused it to file bankruptcy, demonstrating the interrelated nature of these

claims.  See Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869, 875 (2d Cir. 1991).  It is immaterial that UBM did not actually assert these rights

in the bankruptcy proceeding.  See Roboserve, Inc., 121 F.3d at 1034.  Finally, the bankruptcy proceeding resulted in a final judgment on the merits.  The

bankruptcy court issued a series of orders that resulted in FNB's claim being

paid.  The effect of these orders was to remove FNB as a party to the bankruptcy, thus terminating the litigation between UBM and FNB.  These orders were final

orders for the purposes of res judicata.  See La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 908 (7th Cir 1990) (holding a bankruptcy court's order issued prior to confirmation of debtor's liquidation plan allowing

debtor to sell assets constituted a final judgment).

	Plaintiffs raise a number of arguments, contesting each of the elements

upon which res judicata is founded and contending that certain of the exceptions to the doctrine also preclude its application.  They also make some general

arguments regarding the application of the doctrine in this case.  We will

examine plaintiffs' arguments individually.

	First, plaintiffs complain that the trial court improperly shifted onto

them the burden of proving that res judicata did not apply.  While it is true that defendants bear the burden of proving the doctrine applies (American National Bank & Trust Co. v. Village of Libertyville, 269 Ill. App. 3d 400, 404 (1995)), plaintiffs fail to explain how the trial court shifted the burden to

plaintiffs in the present case.  Plaintiffs' entire argument on this point

consists of a conclusory statement that the burden was so shifted, which is not

supported by citation to the record.  Accordingly, this argument is waived and

warrants no consideration by this court.  Department of Public Aid ex rel. Peavy v. Peavy, 307 Ill. App. 3d 16, 23 (1999).

	Second, plaintiffs contend that the claims that were the basis of the

instant case were not compulsory counterclaims and therefore should not be barred

now.  Thus, according to plaintiffs, they were under no obligation to assert

their claims in the bankruptcy proceeding.  However, whether a counterclaim is

compulsory has no bearing on whether res judicata bars its assertion in a later proceeding.  Sanders Confectionery Products, Inc., 973 F.2d at 484 ("[W]hat is important is not whether a particular claim is compulsory, but whether the claim should have been considered during the prior action").  Parenthetically, we note

that under Illinois law no counterclaims are classified as compulsory (see 735

ILCS 5/2--610 (West 1998)); however, this does not preclude the application of res judicata.  See Block & Co. v. Storm Printing Co., 40 Ill. App. 3d 92, 96 (1976); J. Parness, Illinois Civil Procedure §§5--4(b)(3), 7--9 (1998). 

Plaintiffs' assertion that the claims set forth in the present case were not

compulsory counterclaims in the bankruptcy proceeding is irrelevant.

	Plaintiffs next argue that the trial court erred in barring their claims

because they were not core proceedings in the bankruptcy.  To understand this

argument, it is necessary to understand some basic concepts regarding the

jurisdiction of bankruptcy courts.  The United States Supreme Court held the

Bankruptcy Act of 1978 unconstitutional because it impermissibly vested Article

III judicial power in Article I judges.  Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87, 73 L. Ed. 2d 598, 625, 102 S. Ct. 2858, 2880 (1982).  Hence, federal district courts were given jurisdiction over

bankruptcy cases.  Barnett, 909 F.2d at 978-79.  District courts may refer all bankruptcy cases, as well as matters related to a bankruptcy, to a bankruptcy

judge.  Sarno v. Thermen, 239 Ill. App. 3d 1034, 1045 (1992).  The bankruptcy judge may hear the case and enter any appropriate orders and judgments regarding

core matters.  Sarno, 239 Ill. App. 3d at 1045.  Core matters are those that are based upon a right created by federal bankruptcy law or that could not exist

outside of a bankruptcy.  Sanders Confectionery Products, Inc., 973 F.2d at 483.  Additionally, section 157(b) of the Judicial Code contains a nonexclusive list

of matters that constitute core proceedings.  28 U.S.C.  §157(b) (1994).  This

list includes matters concerning the administration of the bankruptcy estate, the

allowance and disallowance of claims against the estate, counterclaims by the

estate against persons filing claims against the estate, orders to turn over property of the estate, and confirmation of plans.  28 U.S.C. §157(b) (1994). 

Bankruptcy courts also have jurisdiction over noncore matters.  Barnett, 909 F.2d at 979.  Noncore proceedings are those that are related to a bankruptcy. 

Barnett, 909 F.2d at 979.  Noncore proceedings encompass any matter that could have a conceivable effect on a bankruptcy estate.  Baudoin, 981 F.2d at 740.  Regarding noncore matters, a bankruptcy judge may  enter orders or judgments only

with the consent of the parties.  28 U.S.C. §157(c)(2) (1994).  Absent such consent, the bankruptcy court may only hear the matter and submit proposed

factual findings and conclusions of law to a federal district court.  Sanders Confectionery Products, Inc., 973 F.3d at 483.  The district court must then conduct de novo review and enter a final order or judgment.  28 U.S.C. §157(c)(1) (1994).

	According to plaintiffs, this limitation on the jurisdiction of bankruptcy

courts precludes the application of res judicata regarding matters that would have constituted noncore proceedings in their bankruptcy action.  Defendants

contend that this distinction is immaterial.  Both sides are able to provide

ample case law in support of their positions, for the federal circuit courts of

appeals appear to be divided on this issue.

	Plaintiffs rely primarily on precedent from the Fifth and Seventh circuits. 

See Barnett, 909 F.2d 973; Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183 (5th Cir. 1990).  In Howell, the Fifth Circuit held that, because a bankruptcy judge is limited to making proposed findings of fact and conclusions of law in a

noncore proceeding, res judicata bars only claims that would constitute a core claim in an earlier bankruptcy action.  Howell, 897 F.2d at 189-90; see also I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1548 n.8 (11th Cir. 1986).  The Seventh Circuit adopted this position in Barnett, 909 F.2d at 979.  But see In re Met-L-Wood Corp., 861 F.2d 1012, 1016-17 (7th Cir. 1988) (holding res judicata barred RICO suit following bankruptcy court's order confirming a sale of the debtor's assets).

	It is unclear, however, whether these circuits remain committed to this

position (see In re Int'l Nutronics, Inc., 28 F.3d 965, 970 (9th Cir. 1994)) and whether these holdings are intended to apply to situations like the one

confronting us in the present case.  In a 1997 case involving lender liability

arising from an alleged wrongful increase in the interest rate of a secured note,

the Seventh Circuit stated, in dicta, the following:

		"Even if we had determined that Section 7.1 [of the approved

liquidation plan] reserved this cause of action, an alternative res

judicata bar to [plaintiff's] claim arises from the May 31, 1994 order

allowing [defendant's] secured claim. [Plaintiff] did not object to the

claim at the May 31 hearing despite having the opportunity to do so.

[Citation.]  By pursuing damages from [defendant], [plaintiff] is in

effect contesting the validity and amount of [defendant's] claim.  Because

it had the opportunity to contest the claim before the bankruptcy court,

*** it became barred by res judicata when [plaintiff] failed to do so.

[Citation.]"  D&K Properties Crystal Lake, 112 F.3d at 262 n.4.

This passage either suggests a retreat from the position the court took in

Barnett or indicates that claims of debtors that could be made in response to a claim of a creditor in a bankruptcy proceeding must be asserted in the proceeding

and, in keeping with Barnett, are core claims.  It is noteworthy that section 157(b)(2)(C) of the Judicial Code vests bankruptcy courts with core jurisdiction

regarding 'counterclaims by the estate against persons filing claims against the

estate.'  28 U.S.C. §157(b)(2)(C) (1994).  Barnett is distinguishable from both D&K Properties and the present case on similar grounds.  Barnett involved a claim by the trustee of the bankruptcy estate against the individual who filed bankruptcy.  Both D&K Properties and the present case concern claims made by debtors against creditors following the allowance of a claim made by the

creditors in a bankruptcy action.  Conversely, the Barnett court expressly noted that the claim in that case did not fit into any of the categories enumerated in

section 157(b).  Barnett, 909 F.2d at 978.  

	We are cognizant that some courts have warned against interpreting section

157(b) broadly for fear of running afoul of the Supreme Court's decision in

Northern Pipeline Construction Co., 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858.  See In re T.R. Paris & Family, Inc., 89 B.R. 760, 764-65 (Bankr. S.D. Ill. 1988).  We do not believe an interpretation that allows for the assertion of a

counterclaim in a bankruptcy court that arises out of the same transaction

forming the basis of a creditor's claim constitutes a broad interpretation of

this provision.  It is difficult to conceive of an interpretation that would be

narrower and still give some meaning to this provision.  This interpretation is

in accord with the Fifth Circuit's handling of a similar matter.  See Baudoin, 981 F.2d 736.

	Like Seventh Circuit case law, subsequent  Fifth Circuit case law indicates

that the analysis set forth in Howell, where the Fifth Circuit held res judicata was no bar to a noncore claim (Howell, 897 F.2d at 189-90), does not apply to the present case.   In Baudoin, the Fifth Circuit held that the plaintiffs' lender liability claims, which alleged violations of various loan agreements that were

the basis of the defendant's earlier filing of a proof of claim in a bankruptcy

proceeding, were core proceedings and barred by res judicata.  Baudoin, 981 F.2d at 737.  Further, the present case and Baudoin are distinguishable from Howell in a like manner.  In Howell, the plaintiff was a creditor, rather than thea debtor who failed to contest a proof of claim.

	We agree with plaintiffs that cases from the Fifth and Seventh Circuits

state that res judicata applies only to claims that would have been within the core jurisdiction of a bankruptcy court. However, this principle must be applied

in light of other precedents from those circuits indicating that lender-liability

actions constitute core proceedings.  

	Several federal circuits reject the distinction between core and noncore

claims for the purpose of res judicata.  See Plotner v. AT&T Corp, 224 F.3d 1161, 1173-74 (10th Cir. 2000); Corestates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 197 (3d Cir. 1999); In re Int'l Nutronics, 28 F.3d 965, 969-70 (9th Cir. 1994); Sanders Confectionery Products, Inc. v. Heller Financial, Inc., 973 F.3d 474, 483 (6th Cir. 1992); Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869, 875 (2d Cir. 1991).  These courts generally have relied upon the fact

that a district court may enter a final judgment in a matter heard before a

bankruptcy judge.  See Corestates Bank, N.A., 176 F.3d at 197 ("[E]ven though a bankruptcy judge could not conclusively determine a non-core proceeding, the

bankruptcy judge and the district court together could do so, and this was

sufficient to permit full and fair litigation of the non-core claim").  Further,

one commentator charges that the position taken by the Fifth Circuit and Seventh

Circuit demonstrates a confusion between the concepts of jurisdiction, being the

ability to entertain an action, and power, being the ability to grant a

particular form of relief.  R. Avery, Chapter 11 Bankruptcy and Principles of Res Judicata, 102 Com. L.J. 257, 286-88 (1997).  It thus appears that the position of the Fifth and Seventh Circuits has been widely rejected, with the opposite

view holding prominence in the federal courts.

	We need not interject ourselves further into this debate.  We note that two

of our sister courts have adopted the reasoning set forth in Barnett.  See Smith Trust & Savings Bank v. Young, 312 Ill. App. 3d 853 (3d Dist. 2000); Sarno v. Thermen, 239 Ill. App. 3d 1034 (1st Dist. 1992).  However, while setting forth the holding in Barnett regarding core and noncore claims, the Third District does not appear to have based its decision upon this distinction.  Smith Trust & Savings Bank, 312 Ill. App. 3d at 857-59.  Because we conclude that plaintiffs' claims would have constituted core claims in the earlier bankruptcy action, they

would be barred according to the analysis of any of the courts set forth above.

	Lender-liability actions arising out of the same transaction that forms the

basis of a creditor's proof of claim are core matters.  Initially, we note that

the plain language of section 157(b)(2)(C) makes "counterclaims by the estate

against persons filing claims against the estate" core proceedings.  28 U.S.C.

§157(b)(2)(C) (1994).  Furthermore, the Fifth Circuit, which accepts the

distinction between core and noncore claims for the purpose of res judicata, has held that such claims are core proceedings.  Baudoin, 981 F.2d at 737.  In that case, a lender filed a proof of claim based on amounts due it arising from a

series of loan transactions it had entered into with the plaintiffs.  This claim

was subsequently allowed.  The plaintiffs later filed an action seeking damages

for the breach of the loan agreements as well as for several related torts.  In

finding the plaintiffs' claims barred by res judicata, the court noted:

		"In the [plaintiffs'] bankruptcy, the Bank filed a proof of claim,

based on the loans it made to the corporation.  The [plaintiffs'] lender

liability suit alleges violation of these very loan agreements.  If it

believed that the agreements had been breached, [plaintiffs] could, and

should, have filed an objection to that proof of claim, asserting a lender

liability 'counterclaim'. " Baudoin, 981 F.2d at 741.

Thus, the court held that claims arising from a transaction that also formed the

basis of a proof of claim in a bankruptcy are core claims.  We find this

reasoning persuasive.  In the present case, plaintiffs allege misconduct by FNB arising out of actions taken relative to the loan agreements between FNB and UBM. 

Further, FNB's proof of claim in the bankruptcy proceeding was based on the loans

made pursuant to the same agreement.  If UBM believed that FNB had breached the

agreement under which it claimed a right to payment, it should have contested the

claim during the bankruptcy proceeding.  Many courts have similarly concluded

that a counterclaim against a creditor's proof of claim constitutes a core

proceeding.  See, e.g., In re Chapman, 154 B.R. 258, 261 (Bankr. N.D. Ill. 1993); In re Glen Eagle Square, Inc., 132 B.R. 106, 113 (Bankr. E.D. Pa. 1991) (collecting cases); In re BKW Systems, Inc., 66 B.R. 546, 547-48 (Bankr. D. N.H. 1986); Jungkunz v. Fifth Third Bank, 99 Ohio App. 3d 148, 650 N.E.2d 134 (1994).  Accordingly, we conclude that plaintiffs' claims against FNB would have been core

proceedings in the bankruptcy action, and, as such, they are subject to being

barred by res judicata in subsequent proceedings.

	Before leaving this issue, we must address plaintiffs' contention that an

order made by the bankruptcy court precludes a finding that res judicata bars the prior action.  After plaintiffs filed this action, defendants returned to the

bankruptcy court seeking an order barring plaintiffs from proceeding with this

suit.  Generally, the preclusive effect of a judgment is a question for the court

presiding in the second case.  Pettibone Corp. v. Easely, 935 F.2d 120, 123 (7th Cir. 1991).  The bankruptcy court denied the motion, finding that it had neither

core nor noncore jurisdiction over the motion.  In the course of so ruling, the

bankruptcy court stated the following:

	"Although 28 U.S.C. §157 contains a list of matters which are core

proceedings, the list is not exhaustive and matters not enumerated may be

core proceedings.  [Citation.]  A core proceeding 'evokes a substantial

right provided by title 11' or 'by its nature could arise only in the

context of a bankruptcy case.'  [Citation.]  The factual circumstances of this case do not place it within matters that are core proceedings. 

Nothing in 28 U.S.C. §157(b)(2) encompasses the cause of action in

question nor is it a cause of action which can only arise in bankruptcy. 

[Citation.]  The breach of contract action is the creation of state law

and would be pursued outside the bankruptcy context had the Debtor not

filed for Chapter 11 protection.  [Citation.]  Therefore, this court has

neither core nor related[-]to jurisdiction over the cause of action and it

must stay with the Circuit Court."

Plaintiffs contend that this order forecloses the issue of whether res judicata bars the present action.  Plaintiffs fail to recognize that the bankruptcy court

was considering its jurisdiction over defendants' motion after the bankruptcy

case had ended.  Following the confirmation of a plan, the jurisdiction of a

bankruptcy court shrinks.  In re Cary Metal Products, Inc., 152 B.R. 927, 932 (Bankr. N.D. Ill. 1993).  Thus, the bankruptcy court was assessing its

postconfirmation jurisdiction rather than its jurisdiction over plaintiffs' claim

during the preconfirmation bankruptcy proceeding.  The latter is the relevant

question for res judicata purposes.  Had the bankruptcy court considered this question, it likely would have come to a different conclusion.  In determining

it lacked jurisdiction over defendants' motion, the court stated that "nothing

in 28 U.S.C. §157(b)(2) encompasses the cause of action in question."  However,

during the preconfirmation proceedings, something in that section would have

encompassed plaintiffs' claims.  Section 157(b)(2)(C) makes "counterclaims by the

estate against persons filing claims against the estate" core proceedings.  28

U.S.C. §157(b)(2)(C) (1994).  During the pendency of the bankruptcy action,

plaintiffs' claims would have fallen within this provision; however, at the time

defendants brought their motion to bar, this provision was inapplicable because

there was no longer a proof of claim being asserted to which plaintiffs' claim would have been a counterclaim.  Because the bankruptcy court was considering a

different question from the one confronting this court, its order has no bearing

on the outcome of this appeal.

	Plaintiffs next argue that the fact that FNB was not a party to the plan

of reorganization makes res judicata inapplicable in this case.  In a related argument, plaintiffs contend that the orders that resulted in FNB's exiting the

bankruptcy proceeding were not final orders.  The reason FNB was no longer a

party at the time the reorganization plan was approved is that FNB's claim had

been fully satisfied pursuant to the orders of the bankruptcy court entered in

the course of UBM's efforts to secure alternate financing from Gibraltar. 

According to plaintiffs, this means that FNB was not a party to the final order

of the bankruptcy court.  Plaintiffs fail to recognize that the orders of the

bankruptcy court resulting in FNB's having its claim satisfied and being removed

as a party were final orders.  A final order is one that concludes litigation

between the parties.  Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 666 (7th Cir. 1986); Flores v. Dugan, 91 Ill. 2d 108, 112 (1982).  An order of a bankruptcy court confirming a plan of reorganization has long been recognized as a final judgment and is given the same effect as the

judgment of a district court for the purpose of res judicata.  Eubanks v. Federal Deposit Insurance Corp., 977 F.2d 166, 170-71 (5th Cir. 1992).  Similarly, the bankruptcy court's orders that resulted in FNB's no longer being a party at the

time of the plan confirmation were final orders.  The extent of the controversy

between FNB and UBM in the bankruptcy proceeding was based upon FNB's proof of

claim.  Once FNB's claim was satisfied, the litigation between the parties ended. 

It has been recognized that a bankruptcy court's allowance of a claim is a final

order.  Siegel v. Federal Home Loan Mortgage Corp., 143 F.3d 525, 529-30 (9th Cir. 1998).  Thus, whether FNB was a party at the time of the plan confirmation is immaterial.  The orders that resulted in the satisfaction of their claim were

final orders for the purposes of res judicata.

	Plaintiffs also argue that, during the bankruptcy proceeding, they reserved

their right to pursue the current action at a later time.  Plaintiffs maintain

that they fully disclosed the present cause of action during the bankruptcy

proceeding and this resulted in the reservation of the cause of action's being reserved such that

they can pursue it now.  However, plaintiffs provide no authority that either

directly or indirectly supports the proposition that the disclosure of a cause

of action is sufficient to reserve it.  Thus, this argument is waived.  Fuller v. Justice, 117 Ill. App. 3d 933, 942 (1983).  That plaintiffs cite some dicta to support their position in their reply brief is immaterial.  Supreme Court Rule

341(e) applies to the appellant's main brief and requires that arguments be

supported by authority.  177 Ill. 2d R. 341(e).  A different rule pertains to

reply briefs.  See 177 Ill. 2d R. 341(g).  Moreover, even if we were to consider

the merits of this argument, we would not be persuaded.  It is true that an

exception to res judicata exists when the court in an earlier action expressly reserves the plaintiff’s right to bring a claim at a later time.  Altair Corp., 318 Ill. App. 3d at 63.  The Seventh Circuit considered this issue in determining

whether a bankruptcy proceeding barred a later cause of action and concluded that

"[to] avoid res judicata the reservation of a cause of action must be both

express, as in writing, and express, as in specifically identified."  D&K Properties Crystal Lake, 112 F.3d at 261.  While plaintiffs point to instances where their claim against FNB was disclosed, they do not indicate where the cause

of action was reserved.  Thus, even if not waived, plaintiffs' argument would

fail.

	Plaintiffs next argue that the trial court abused its discretion by

refusing to consider additional evidence plaintiffs submitted during their motion requesting that the court reconsider its dismissal of the current action.  This

evidence was purportedly relevant to the issue of whether plaintiffs properly

reserved their claim.  Because plaintiffs waived that issue, this argument is

moot.  Furthermore, even if plaintiffs had not waived that issue, we would

conclude that the trial court did not abuse its discretion by refusing to

consider this additional evidence.  In support of their argument, plaintiffs rely

on In re Estate of Garbalinski, 120 Ill. App. 3d 767 (1983).  In that case, the trial court was held to have abused its discretion in failing to consider several

documents in the possession of the executor of a will where the contestants to

the will did not offer them in response to the executor's motion for summary

judgment.  Garbalinski, 120 Ill. App. 3d at 771-73.  Though aware of the documents' existence, the contestants' attorney failed to communicate to the

contestants' co-counsel that these documents existed.  The basis for the

Garbalinski court's decision was that the executor had knowledge of the documents and failed to bring them to the court's attention and that the executor possessed

a fiduciary duty to the decedent's estate.  Garbalinski, 120 Ill. App. 3d 772.  Plaintiffs do not argue that defendants had any fiduciary duty like the one

relied upon by the court in Garbalinski.  Plaintiffs do state that they were represented by different counsel in the bankruptcy and the current case; however,

they do not represent that they were unaware of the evidence they sought to

submit with their motion for reconsideration, as the attorney in Garbalinski did.  Accordingly, Garbalinski is distinguishable.  Generally, evidence submitted for the first time during a motion for reconsideration should not be considered

absent some reasonable explanation of why it could not have been submitted in a

timely manner.  Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195 (1989).  Plaintiffs have provided no such explanation.

	Plaintiffs further contend that, even if UBM is barred from asserting the

current action, neither Cabrera nor JC-UBM is because they are not privies of UBM

for res judicata purposes.  Generally, res judicata bars not only actual parties to litigation from reasserting a claim, but extends to their privies as well.  Conner, 847 F.2d at 394; River Park, Inc., 184 Ill. 2d at 302.  The term "privies" encompasses successors in interest, entities that controlled the

earlier action, and entities whose interests were adequately represented in the

earlier action.  Latham v. Wells Fargo Bank, N.A., 896 F.2d 979, 983 (5th Cir. 1990).  JC-UBM and Cabrera fall within the second definition.  Cabrera was the

sole shareholder of UBM and JC-UBM from 1993 until 1998.  He was also the

president and chairman of the boards of both corporations.  As such, he was in

a position to control the action during the bankruptcy proceeding.  See Sanders, 973 F.2d at 481; Sure-Snap Corp, 948 F.2d at 877; Grisanzio v. Bilka, 158 Ill. App. 3d 821, 827 (1987).  Accordingly, we reject plaintiffs' argument.

	Without citation to authority, plaintiffs contend that the trial court

erred in ruling that the bank's directors were privies of FNB.  This argument is

thus waived.  Fuller, 117 Ill. App. 3d at 942.  Moreover, we note that bank directors have previously been held to be privies of a bank for res judicata purposes where the plaintiffs brought an action under the Racketeer Influenced

and Corrupt Organizations Act (18 U.S.C. §§ 1961 through 1968 (1994)) arising out

of a bank's conduct during the course of a loan transaction.  Henry, 808 F.2d at 1235 n.6.  

	Finally, plaintiffs contest the trial court's award of attorney fees to

FNB.  The trial court awarded fees and costs to defendants based on provisions

allowing for their award contained in three documents executed during the loan

transaction.  The loan agreement provided that FNB was entitled to any costs,

fees, and expenses incurred if it employed counsel to represent it, inter alia, "in any litigation, contest, dispute, suit or proceeding or to commence, defend

or intervene or to take any other action with respect to any litigation, contest,

dispute, suit or proceeding (whether instituted by Lender, Borrower, Guarantors,

or any other person)."  Two other documents contained similar provisions.  The

trial court held that this language encompassed FNB's actions in defending the

present suit and that the award of fees was appropriate based upon these

provisions.  Plaintiffs argue these provisions could not form the basis of an

award because FNB assigned its interests created by these documents to UBM and

JC-UBM.  In fact, the three documents FNB relied on in its motion for

reimbursement for fees and costs are specifically referenced in a document titled

"Assignment of Promissory Business Note and Related Loan and Collateral

Documents."  In this document, FNB assigns its "entire right, title and interest"

to UBM and JC-UBM.  FNB protests that, since plaintiffs' current suit is based

on the loan transaction, it should be able to assert its rights under that

agreement as well.  Plaintiffs respond that the assignment only involved FNB's

rights arising from the loan transaction, not its liabilities.  However,

plaintiffs cite no authority for this last proposition, except belatedly in their

reply brief.  Thus, this argument is waived.  Fuller v. Justice, 117 Ill. App. 3d at 942; 177 Ill. 2d R. 341(e).

	Plaintiffs also contend that the trial court erred in determining the

amount of fees awarded in that no evidentiary hearing was held, FNB's request for

fees was not supported by sufficient evidence, and the award of approximately

$70,000 was not reasonable for securing a motion to dismiss.  We will address

these contentions separately. 

	Regarding plaintiffs' first contention, we conclude that plaintiffs waived

their right to an evidentiary hearing.  While it is true that a party who

requests an evidentiary hearing on attorney fees must be given one (Bank of America National Trust & Savings Ass'n v. Schulson, 305 Ill. App. 3d 941, 952 (1999)), the failure to request such a hearing results in a waiver of one's right

to the hearing.  See Schroeder v. Meier-Templeton Associates, Inc., 130 Ill. App. 3d 554, 558 (1984); Wach v. Martin Varnish Co., 96 Ill. App. 3d 954, 957 (1981); cf. Hupe v. Hupe 305 Ill. App. 3d 118, 126-27 (1999) (considering the question in the context of an award of attorney fees in a dissolution of marriage action). 

Plaintiffs do not indicate where in the record they requested an evidentiary

hearing, if they did, in fact, do so.  Accordingly, we find no error in the trial

court's awarding attorney fees without conducting an evidentiary hearing.

	Plaintiffs next complain that FNB's fee request was insufficiently

supported by evidence showing its reasonableness.  Plaintiffs correctly note that

a petition for fees must specify the services performed, the time expended on

them, the attorney who performed them, and the hourly rate charged for the

services.  Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 984 (1987).  Additional factors of relevance include the skill and standing of the

attorney involved, the difficulty of the work, the novelty or difficulty of the

issues, the importance of the matter, the benefit obtained for the client, and

the usual and customary charge for such services.  Kaiser, 164 Ill. App. 3d at 984.  Plaintiffs contend that the trial court failed to require FNB to provide

any of the information required by Kaiser.  This allegation is simply false.  

	Initially, we note that defendant appended to its motion for fees a

detailed billing statement.  This statement indicated the dates work was

performed, by whom it was performed, the hourly rate charged, and the amount of

time expended.  It also provided a summary of what work was performed regarding

each entry.  In ruling on FNB's motion, the court first stated that it had

reviewed this document.  The court then found that FNB's attorney's hourly rate

was reasonable for an attorney of his experience.  The court went on to state that it was aware of the number of times the parties had to appear in the case,

the size of the briefs submitted, and the amount of research required for the

various arguments.  The court also noted the amount of discovery that took place. 

In assessing the propriety of a fee request, a trial court may rely on its own

experience.   Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 691 (1994).  The determination of the reasonableness of a request for fees is a matter that lies within the discretion of the trial court.  Heller Financial, Inc., 264 Ill. App. 3d at 690.

	We find no abuse of discretion in the present case.  The trial court's

experience and observation of the progress of the case, along with the material

attached in support of FNB's petition for fees, provided adequate support for the

court's determination.  The trial court was well aware of the difficulty of the

issues involved, as well as the quality of FNB's counsel's work, and was in the

best position to determine the appropriate award.  Given the material supporting

the fee award and the careful reasoning appearing in the record, we will not

interfere with the trial court's exercise of its discretion in this matter.

	Finally, plaintiffs contend that the trial court failed to consider whether

there was a reasonable connection between the amount expended by FNB and the

result it achieved.  Essentially, plaintiffs argue that fees approaching $70,000

are unreasonable for securing the dismissal of a complaint.  In light of the

considerations set forth in the preceding paragraph, we disagree.  We further

note that this case involved complex issues and a voluminous record, which

included a substantial number of documents from the earlier bankruptcy

proceeding.  Plaintiffs' complaint consisted of seven counts.  Additionally, the

complaint that was dismissed was plaintiffs' second- amended complaint, thus

entailing more work than if only one complaint had been filed.  Defending a

motion for reconsideration was also involved.  In sum, substantially more work was required than is implied by the statement that FNB spent almost $70,000 to

secure the dismissal of a complaint.  Moreover, the benefit conferred on the

client is only one of the factors a court is to consider in assessing fees. 

Kaiser, 164 Ill. App. 3d at 984.  Plaintiffs' argument here, at its core, takes this one factor and focuses on it to the exclusion of other relevant factors. 

Therefore, we find no abuse of discretion in finding this amount reasonable

merely because FNB spent close to $70,000 securing a dismissal of the case.

	For the foregoing reasons, we affirm the trial court's judgment that

dismissed plaintiffs' second amended complaint and awarded fees and costs to FNB.

	Affirmed.

	McLAREN and GEIGER, JJ., concur.