Appendix C Check List: Filing Suit, and Amendments to Pleadings
Library | Turner on Illinois Mechanics Liens (2016 Ed.) |
A. Foreclosure on the Contractor's and Subcontractor's Mechanics Lien Claims Against Private Property
1. Nature of the Action:
a. Chancery action governed primarily by Sections 9 and 11 of Mechanics Lien Act2. Pre suit requirements. Check for the following in the contract. Suit or proceedings may have to be delayed until after (a) Arbitration; (b) Mediation, or (c) Nonbinding proceedings for decisions by Architect or Engineer. But suit may be filed to prevent the time for filing suit to expire. The time to file suit may be extended by Bankruptcy of a necessary party.
b. A mechanics lien proceeding is a statutory proceeding in derogation of the common law. The lien claimant must comply strictly with the statute to have a lien.
(1) Necessary Partiesc. The substantive principles of equity are not applicable, but chancery practice and procedure do apply.
All Necessary Parties should be named in each claimant's pleading. See 770 ILCS 60/11(b).
(2) Permissible Parties
Consider which permissible parties are to be joined. See 770 ILCS 60/11(d).
(3) Pleading alleging mechanics lien and including all necessary parties must be filed within two years of the lien claimant's last day of work. 770 ILCS 60/9, 11.
(4) Not delaying suit for more than three years after the first work is done for which the lien claimant has not been paid. 770 ILCS 60/6.
d. Separate counts for contract, foreclosure actions, and other actions advisable
3. Checking for Other Proceedings. It is essential to check the public records for earlier proceedings, especially mechanics lien and mortgage foreclosure suits. Failure to intervene in such a proceeding or have a proceeding brought by the lien claimant consolidated with the earlier proceeding may result in the lien claimant's lien being barred by the prior action....
4. Venue and Jurisdiction. The suit should be brought in the county where the real estate is located. Whether the Federal Court can have jurisdiction is questionable.
5. Multiple Parcels of Land
a. A lien claimant can assert a lien against multiple lots if:
(1) there is one contract for the work on all of the lots;b. Unless it is impossible or impractical, the lien should be allocated among
(2) work is done on each lot or else all of the lots are occupied as one place of residence or business; and
(3) the owners of all of the lots have either contractedfor the work or else knowingly permitted the work to be done.
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- Turner on Illinois Mechanics Liens
- Front Matter
- Acknowledgements
- Table of Contents
- Introduction
- Chapter I What Are the Elements of a Mechanics Lien? 770 Ilcs 60/1(a) and (b) Explained
- Chapter II Practical Considerations
- Chapter III Making a Lien Against Private Property Enforceable
- Chapter IV Filing Suit, Pleadings, Remedies, and Related Matters
- Chapter V Burden of Proof, Proof, Certain Defenses, and Damages
- Chapter VI Public Policy Issues
- Chapter VII Statutes of Limitation and Related Matters
- Chapter VIII Payouts, Waivers, Sworn Statements, Statutory and Constructive Trusts, and Wrongful Payments
- Chapter IX Liens on Public Funds and Claims Against Statutory Bonds
- Chapter X Bankruptcy and Mechanics Liens
- Appendix A Check List: Practical Considerations
- Appendix B Check List: Making a Lien Against Private Property Enforceable
- Appendix C Check List: Filing Suit, and Amendments to Pleadings
- Appendix D Check List: Proving a Mechanics Lien Claim
- Appendix E Check List: Liens on Public Funds and Claims Against Payment Bonds
- Appendix F Check List: Defendants
- Appendix G Check List: Owners and Lenders on Payouts
- Index
- About the Authors
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