Appendix C Check List: Filing Suit, and Amendments to Pleadings

• Library: Turner on Illinois Mechanics Liens (2016 Ed.)

APPENDIX C - CHECK LIST: FILING SUIT, AND AMENDMENTS TO PLEADINGS

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 Act
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 Parties
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.

c. The substantive principles of equity are not applicable, but chancery practice and procedure do apply.
d. Separate counts for contract, foreclosure actions, and other actions advisable

2. 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.

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;
(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.

b. Unless it is impossible or impractical, the lien should be allocated among

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