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Parkway Bank and Trust Company v Meseljevic

Case No. 1-09-3396 (IL Dist. 1 App., Dec. 7, 2010)

Plaintiff Parkway Bank and Trust Company (Parkway) filed an action in chancery court for foreclosure of a construction mortgage and sale of the underlying real property. One of the defendants, Beta Electric, Inc. (Beta), filed a counterclaim asserting the priority of its mechanic’s lien on the property over Parkway’s mortgage. The court granted judgment on the pleadings to Parkway on the counterclaim and denied Beta’s motion for reconsideration. Beta argues the court (1) abused its discretion by striking Beta’s untimely response to Parkway’s motion for judgment, denying Beta’s motion for approval of the late filing and excluding Beta from oral argument for its failure to strictly comply with the court’s briefing schedule; and (2) erred in granting Parkway’s motion for judgment on the pleadings on the basis that Beta was a subcontractor, not a contractor, under the Mechanics Lien Act (770 ILCS 60/1 et seq. (West 2008)) and had failed to properly perfect its lien. We affirm.

Background

In 2006, Haso, Samel and Albin Meseljevic started development of a 40-unit commercial condominium project in Chicago. At some point, the Meseljevics incorporated the project as 1633 Farwell Ave. LLC. On April 11, 2006, Beta entered into a contract with Haso pursuant to which Beta would perform electrical work on the project. On May 8, 2006, Parkway entered into a construction mortgage contract with Haso and Samel, identified in the contract as “grantor[s]” and “borrower[s].” Parkway recorded the mortgage on May 11, 2006. The mortgage was modified and/or renewed several times, with 1633 Farwell Ave. LLC being added as a grantor/borrower in October 2007. On May 1, 2008, Parkway accepted a promissory note executed by all three Meseljevics and by Haso as “operating manager” of 1633 Farwell Ave. LLC. On August 5, 2008, Beta recorded a mechanic’s lien against 16 of the condominium units after the Meseljevics failed to pay Beta $136,200 due for Beta’s work on the project.

On August 29, 2008, Parkway filed a verified mortgage foreclosure complaint naming as defendants the Meseljevics individually; 1633 Farwell Ave. LLC.; the board of managers of 1633 Farwell Ave. LLC.; Benz Kitchens; Beta; and unknown owners and record claimants. Parkway alleged the Meseljevics had not made any payments on the mortgage since April 2008. It requested a judgment of foreclosure on its construction mortgage secured by the promissory note, an order of possession and sale and an order terminating all defendants’ rights to possession of the property.

On January 26, 2009, the court entered an order of default against all defendants and granted Parkway’s motion for a judgment of foreclosure and sale. In March 2009, the court vacated the default judgment against Beta in order to allow Beta to assert the priority of its mechanic’s lien over Parkway’s mortgage. Beta then filed a verified answer to Parkway’s complaint and a counterclaim against Parkway and the Meseljevics; 1633 Farwell Ave. LLC.; the board of managers of 1633 Farwell Ave. LLC.; Benz Kitchens; Beta; and unknown owners and record claimants. The counterclaim asserted Beta’s lien had priority over any other interests, including Parkway’s mortgage. It asked for a judgment against Parkway for the $136,200 lien amount, plus costs, and/or a judgment extinguishing the interest of any other necessary party to the extent sufficient to satisfy that amount.
 

 

Judge(s): Themis N. Karnezis
Jurisdiction: Illinois Court of Appeals, First District
Related Categories: Contracts , Finance / Banking , Property
 
Circuit Court Judge(s)
Maureen Connors
Joy Cunningham
Themis Karnezis

 
Trial Court Judge(s)
Darryl Simko

 
Appellant Lawyer(s) Appellant Law Firm(s)
Andjelko Galic Law Offices of Andjelko Galic

 
Appellee Lawyer(s) Appellee Law Firm(s)
Eugene Kraus Scott & Kraus LLC
Blair Lazarus Scott & Kraus LLC
Jason Sleezer Scott & Kraus LLC

 

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pleadings because it did not preserve its arguments below; (ii) beta's assertion that the for appellant: law offices of andjelko galic, of chicago (andjelko galic, of 20 respective memorandum.' " marriage of fahy, 208 ill. app. 3d at 685, quoting cook the previous order. on december 7, 2009, beta filed its notice of appeal from the june presented no cause for its late filing, let alone a good cause. "[i]n determining whether contractor, or shall furnish any material to be employed in the process of response a nullity. cedzid co. v. marriott international inc., no. 1-09-1924, slip op. at 4 and blair w. lazarus, of counsel) 2008). crawford supply co., 396 ill. app. 3d at 119; petroline co. v. advanced environmental those facts apparent from the face of the pleadings, matters subject to judicial notice, response was past due, beta's counsel told him it would be filed late. parkway's before we turn to the question of whether the court erred in granting the response late in violation of the court's scheduling order. the circuit court has the default judgment against beta merely because beta did not file a timely response. ) sufficient to satisfy that amount. 1-09-3396 1643n-b in 1633 farwell avenue condominium as delineated on a survey of the the pleadings disclose no genuine issue of material fact and the movant is entitled to question that preservation of a question for review requires an appropriate objection mortgage secured by the promissory note, an order of possession and sale and an 1-09-3396 15 to perfect its lien because it did not give statutory notice of the lien to parkway; and into consideration facts and circumstances of record that go beyond the reason for the motion. this determination is reinforced by the fact that, as the chancery court the knowledge and consent of property owner haso, or of samel or albin with haso's 396 ill. app. 3d 111, 119 (2009). because the rights under the act are in derogation of subcontractor. court did not abuse its discretion in denying beta's motion for approval of late filing of bajwa, 208 ill. 2d at 431-32, and crerar clinch coal co. v. board of education, 13 ill. the lien listed the 16 condominium units and allotted the balance due for work court appears to have denied the motion on the basis that beta did not file the motion unless the responding party can first show good cause for the extension.' " vision point defendants and counterdefendants additional work as "requested, or otherwise knowingly permitted by contractor, as agent improvement in what is commonly termed form or form work where concrete, the motion, the underlying pleadings and exhibits attached to the pleadings. was up to the court and not counsel to approve a late filing. to the response or reply." beta was on notice of the consequences of filing late but following the reasoning of in re marriage of fahy, 208 ill. app. 3d 677 (1991), we find beta was defaulted on the motion. rather, it "simply ruled on the merits of the motion extensive discussion between the court and beta's counsel shows the court did not counsel's "office was unable to file [the] response until" the day following the deadline. appeal from the 10 real estate. arguably, therefore, by entering into a contract directly with the owner, beta asserted the lien was defective because (a) it was a subcontractor's claim for lien and beta had not provided parkway with the 90-day notice required of subcontractors under 16 and judicial admissions in the record. gillen, 215 ill. 2d at 385. when a party moves deny the motion solely on the basis that it was filed after the expiration of the court's record claimants, parkway was a "known" lender to beta. the exhibits attached to parkway's miss the deadline. it might explain why beta did not file a motion for extension of time denied beta's motion for reconsideration. beta argues the court (1) abused its and samel meseljevic collectively as "contractor." it states beta entered into the the act defines a subcontractor as follows: llc condominium; unknown owners and record claimants, denying beta's motion for approval of the late filing and excluding beta from oral disposition of the motion. the sole issue raised by a section 2-615(e) motion is to parkway's motion. rather, it did object but its objection was stricken as untimely. the motion was not supported by an affidavit. necessary party to the extent sufficient to satisfy the amount of the lien plus costs or part of the counterclaim itself. gore, 376 ill. app. 3d at 288; bajwa, 208 ill. 2d at 431. the court granted judgment on the pleadings to parkway on the counterclaim and 1-09-3396 1-09-3396 it also stated that its counsel called parkway's counsel and told him the response would should be granted for good cause. the motion for approval of late filing was putting aside the fact that beta's motion was unsupported by affidavit, it is clear failure to obtain leave of court prior to filing its untimely response did not render the 5 or a default judgment against beta for beta's "simple failure" to file a response. as the llc condominium; unknown owners and beta filed a "motion to approve late filing" of the response. pursuant to supreme be late and, if parkway's counsel intended to object, beta would seek leave of court to appellate court of illinois demonstrate to the court "clear, objective reasons why it was unable to meet the farwell ave. llc when beta filed its lien because it had already been sold to another 8 merely because beta filed no response. rule 2.1(d) was promulgated to apply to motion practice in the law division and, for the reasons stated above, we affirm the decision of the circuit court. and/or a judgment extinguishing the interest of any other necessary party to the extent asserted beta's lien had priority over any other interests, including parkway's mortgage. argument for its failure to strictly comply with the court's briefing schedule; and (2) erred 4 beta filed its response on june 5, 2009, one day late, without first requesting an december 7, 2010 property. one of the defendants, beta electric, inc. (beta), filed a counterclaim for granting judgment on the pleadings was that the lien was defective and never october 2007. on may 1, 2008, parkway accepted a promissory note executed by all won]." the court stated it granted the motion because it was a "good" and "correct" beta asserts that the court entered the judgment on the pleadings against beta limited liability company; benz kitchens; the applies to the law division, the court could "imagine no reason why it should not also 3d 114, 118-19 (1992). the scheduling order warned the parties that "failure to file a of the time [for filing a pleading]." 134 ill. 2d r. 183. accordingly, it would be error to with parkway's counsel is irrelevant to the issue of whether beta had good cause to (september 20, 2010). instead, although it was within the court's discretion to strike the beta's request for clarification, it had reinstated the default judgment in order to reflect if beta entered in the contract with the "contractor" and performed work at the behest of against parkway for $136,200 plus costs and/or extinguishment of the interest of any extension of time or leave of court to file the untimely response. beta's procedural obligations under the contract plus provided additional materials "requested, or looking now to the question of whether the court erred in granting the motion for amount against 16 of the units3 21 court could not decide the motion for judgment on the pleadings without the response; and (iii) beta's assertion that the court granted the judgment on the pleadings or a whether beta presented a good-cause reason for missing the deadline. the report of its claim was based. 735 ilcs 5/2-606 (west 2008); gore v. indiana insurance co., in granting parkway's motion for judgment on the pleadings on the basis that beta was 13 ordinarily consider only the complaint and attachments thereto, the answer and the no. 1-09-3396 beta attached to the counterclaim a copy of the mechanic's lien and of the cunningham, p.j., and connors, j., concur. 1-09-3396 simple title to the real property underlying the condominium project; beta entered into for its work. on august 14, 2009, the court denied beta's motion to reconsider. the court the electrical work contract with haso on that date; all beta's work was performed with beta argues the court erred in entering judgment on the pleadings in favor of 208 ill. 2d 414, 431 (2004). beta's claim is based on the lien and the contract with discoverable by the subcontractor through searching title recording records.' " petroline counterclaim does state that beta entered into the contract with haso as "owner" of the priority of its lien over parkway's mortgage. judgment on the pleadings is proper where counterclaim pursuant to section 2-615(e) of the illinois code of civil procedure (735 monarch printing corp., 150 ill. app. 3d 248, 257 (1986). the court, therefore, would meseljevic, individually; albin meseljevic, subcontractor does not provide a known lender with the mandated section 24 notice, ) accorded to the parties by the court in its discretion. korbelik v. staschke, 232 ill. app. the same day, the court entered a scheduling order setting june 4, 2009, as the due subcontractor to send or serve a notice of its lien claim within 90 days after "completion" waive the right to contest the merits of the motion but merely the right to file a response property by permitting them a lien on the property. crawford supply co. v. schwartz, in marriage of fahy, the domestic relations court had entered a default judgment no. 08 ch 32129 defendant and counterplaintiff-appellant). 381, 385 (2005); intersport, inc. v. national collegiate athletic ass'n, 381 ill. app. 3d any other person claiming an interest in the real estate by, through, or under owner." inquiry into beta's reasons for filing its response a day late, i.e., without considering the lot or tract of land or for the purpose of improving the tract of land, or to of a party to file a response where the party appeared before the court on the date set loan ass'n, 121 ill. app. 3d 511, 514 (1984). a subcontractor is held to have the lien says it was with contractor haso for owner 1633 farwell ave. llc. parkway asserts beta waived its objection on appeal to parkway's motion for the project on april 8, 2008, or filed its lien on august 5, 2008. the counterclaim raises those facts as true, disregard all conclusory allegations and surplusage and construe the lien is unenforceable against the lender. petroline co., 305 ill. app. 3d at 241; hill 198 (2002). the court deciding the motion must take all reasonable inference from was a contractor rather than a subcontractor subject to the section 24 notice honorable 1-09-3396 of police labor council, 358 ill. app. 3d 667, 671 (2005). it did not abuse its discretion without [beta's] response" and "the failure to file a response [did not] mean [parkway ) beta argues that the court abused its discretion in denying beta's motion for homeland, bosnia and herzegovina. property to which parkway's mortgage attached and, moreover, was not owned by 1633 if there is a conflict between the allegations in the counterclaim and the written 23 partly expressed or implied, with the owner of a lot or tract of land, or with one (i) waiver 1-09-3396 judge presiding. affirmed. appears at a hearing ready to object to a motion but its written objection to the motion is cunningham, p.j., and connors, j., concur. op. at 4. december 7, 2010 argument, a motion for judgment on the pleadings only requires that the court consider the meseljevics apparently abandoned the project and went back to their "[the] court, for good cause shown on motion after notice to the opposite party, the court considered beta's counterclaim with attached exhibit (the mechanic's at all. the appellate court found no authority allowing a trial court to find a party in by parkway on its motion for judgment on the pleadings on the counterclaim and but the court might not allow beta to participate in oral argument.2 of sale, inc., 226 ill. 2d at 344, quoting bright, 166 ill. 2d at 209. accordingly, the court the only authority of any relevance to be cook county circuit court rule 2.1(d) (cook well-pled facts in the respondent's pleadings. mccall v. devine, 334 ill. app. 3d 192, motion, not because beta did not file a response. it subsequently clarified that its basis response pursuant to a rule 183 motion " `does not come into play under the rule cement or like material is used in whole or in part, shall be known under this act ) 6 thereafter. as such, it does not allow the entry of a default judgment on the motion due any other relief the court deemed appropriate. the counterclaim was verified by an lien); parkway's complaint with attached exhibits, on which the court had allowed board of managers of 1633 farwell ave. beta contracted with and who beta was actually working for conflict with what beta the act's definition of contractor is as follows: unintentional noncompliance with a [timing] requirement, the circuit court may not take in enforcing its order here. to such a failure." marriage of fahy, 208 ill. app. 3d at 685. although rule 2.1(d) had the discretion to allow beta's response to stand if beta could show good cause for 24 second division the response and in striking beta's untimely response filed without leave of court. haso meseljevic, individually; samel meseljevic, individually; albin hearing on the motion for judgment on the pleadings. the court then heard argument noted, although a court benefits from fully briefed motions, and sometimes from oral the owner. this would necessarily mean haso is (a) a contractor and (b) not the owner. granted parkway's motion to confirm the sale and distribution of the unsold court for foreclosure of a construction mortgage and sale of the underlying real beta asserts the court denied its motion to approve the late filing without any approve the late filing. beta asserted parkway's counsel told him he would not object beta asserts that the court could not properly decide the section 2-615(e) motion raises material questions of fact as to the existence of a cause of action. petrik v. court explained to beta during the hearing on beta's motion to reconsider, it did not rule of the scheduling order. on june 24, 2009, beta filed a motion to approve late filing. 19 recorded its mortgage on may 11, 2006, two years before beta completed its work on ) because beta offered no explanation of why it was unable to comply with the deadline, 12 for judgment on the pleadings pursuant to section 2-615(e), it concedes the truth of the contractor, as agent for and on behalf of owner," for the provision of electrical services; response to a motion for judgment on the pleadings is not necessary to a court's "[t]he contract was entered into by contractor, as agent for owner"; beta had fulfilled its ) co., 305 ill. app. 3d at 238, quoting hill behan lumber co. v. irving federal savings & motion. it asserted beta waived oral argument when it filed its response late in violation company; benz kitchens; the board of managers of 1633 farwell ave. respect to the response or reply." beta filed its response on june 5, 2009, the day similarly, the court did not abuse its discretion in barring beta from participating motion for extension of time absent an abuse of the court's discretion. vision point of parkway's motion for judgment on the pleadings filed against the counterclaim on june 26, 2009, after argument on parkway's objection and beta's motion to exists from the date of the contract between the owner and the contractor"; parkway "customer," and there is no exhibit showing haso was actually the owner of the crawford supply co., 396 ill. app. 3d at 119. however, once the contractor or beta was required to attach to its counterclaim the written instruments on which last substantial work on the property on april 8, 2008; and beta was still owed $136,200 inc. v. construction systems, inc., 382 ill. app. 3d 334, 389 (2008). if the 198. asserting the priority of its mechanic's lien on the property over parkway's mortgage. judgment on the pleadings. the court had everything it needed to decide the merits of it failed to satisfy the good-cause requirement for relief under rule 183. bright, 166 ill. therefore, had absolute priority over parkway's mortgage. beta requested a judgment sooner, but that is not relevant to why beta missed the deadline in the first place. date for beta's response to the motion. the scheduling order warned that "failure to file construction as a means for assisting in the erection of the building or real estate on april 11, 2006; beta "made a contract dated april 11, 2006, with 2. judgment on the pleadings to the pleadings. gillen v. state farm mutual automobile insurance co., 215 ill. 2d judgment on the pleadings by its failure to preserve its arguments below. there is no concluded beta did not properly perfect its mechanic's lien and could not establish the affidavit signed by beta's president stating the statements in the claim were true and motion even if it had wanted to. it was not up to the court to ask why beta missed the good cause exists under rule 183 for the grant of an extension of time to remedy an contractor under the mechanics lien act. beta asserts the court, as a result, incorrectly first district, second division v. provide parkway with notice of its lien. therefore, if beta is a subcontractor, its failure in oral argument regarding the judgment on the pleadings. oral argument in a civil 1. untimely response to assert the priority of its mechanic's lien over parkway's mortgage. beta then filed a to prefect a mechanic's lien claim, section 24(a) of the act requires a approval of its late-filed response to parkway's motion for judgment on the pleadings, 14 with a court-ordered or rule-imposed deadline, both before and after expiration of the argued beta's counterclaim and lien showed beta did not properly perfect its lien in order to demonstrate good cause under rule 183, beta had the burden to mortgagee of the property. the filing dates in assorted exhibits show parkway 2 ) was and, thus, readily discoverable by beta. there is no question that beta did not beta is a subcontractor under the definitions in sections 1 and 21 of the act and should approve late filing, the court denied beta's motion to approve late filing, struck beta's for mechanic's lien against the interest in the real estate held by "1633 farwell ave, on january 26, 2009, the court entered an order of default against all 26, 2009; august 14, 2009; october 21, 2009; and november 6, 2009, orders. expiration of the time." 134 ill. 2d r. 183. after the deadline, without prior leave of court. on june 17, 2009, parkway filed a reply authorized to sign the verification "to the foregoing original contractor's claim for property. in contrast, the lien identifies 1633 farwell ave. llc as "owner" and haso requirement. petroline co., 305 ill. app. 3d at 238. haso and samel, identified in the contract as "grantor[s]" and "borrower[s]." parkway 312, 318 (2008). filed late anyway, without leave of court. as the court told beta, documents cannot be incorporated the project as 1633 farwell ave. llc. on april 11, 2006, beta entered work for haso, a contractor, and not directly for the owner of the property. this means background v. services, material, fixtures, apparatus or machinery, forms or form work for the against the respondent because the respondent's written responses to assorted meseljevic, individually; 1633 farwell ave. llc., an illinois limited liability 22 motion. beta's verified counterclaim asserted that, on april 11, 2006, haso owned fee 1-09-3396 after the meseljevics failed to pay beta $136,200 due for beta's work on the project.1 that the court had no basis on which to approve the late response. beta's motion noncompliance." vision point of sale, inc., 226 ill. 2d at 353. beta's alleged discussion but, even if it did, such would be a legal conclusion the court must disregard. the ) the motion for judgment on the pleadings. deadline and ferret out a possible good cause. this was beta's burden to prove. the therefore, it does not apply in this chancery case. we could find no similar rule relevant appeal from the circuit court of cook county. for hearing on the motion. marriage of fahy, 208 ill. app. 3d at 685. the court found identified haso as "customer." the lien identified beta as the "claimant" filing its claim default and to enter judgment against him based on such default for the "simple failure" for appellee: scott & kraus, llc, of chicago (eugene s. kraus, jason r. sleezer granted the motion. it found beta's lien showed beta was a subcontractor; beta failed ) correct. app. 2d 208, 217 (1957). therefore, taking the lien as true and disregarding the constructive knowledge of a lender/mortgagee whose interest is properly recorded. parkway bank and trust company, as a sub-contractor, and shall have a lien." 770 ilcs 60/21(a) (west 2008). exhibits, the exhibits will control and the allegations will not be taken as true in otherwise knowingly permitted, by contractor, as agent for owner"; beta completed the a timely written response or reply will be deemed a waiver of oral argument with "every mechanic, worker or other person who shall furnish any labor, verified the statements therein were correct. unsupported by affidavit and presented absolutely no reason for missing the deadline. the court would have been unable to perform a good-faith analysis on the basis of that motion for judgment. petrik, 150 ill. app. 3d at 257. record claimants. parkway alleged the meseljevics had not made any payments on the timely written response or reply will be deemed a waiver of oral argument with respect 2d at 209. the court did not err in denying beta's motion for approval of the late filing. attached, then the act should be liberally construed to accomplish its remedial purpose. beta's counsel after the deadline expired in order to inquire about the response co., 305 ill. app. 3d at 238. the phrase "if known" is deemed to mean " `if attached to the property. the court had originally vacated the default judgment against ) verified answer to parkway's complaint and a counterclaim against parkway and the farm mutual automobile insurance co., 215 ill. 2d 381, 385 (2005). we review a circuit in ruling on a motion for judgment on the pleadings, the court must consider only ) its noncompliance with the deadline. we will not reverse a court's decision to deny a and waiver of the question on appeal. this is a drastic result, unwarranted by the contract with haso); a properly perfected lien based on an original contract predating parkway because the court incorrectly found beta was a subcontractor rather than a ) mechanic's lien," had read "the original contractor's claim for mechanics lien" and behan lumber, 121 ill. app. 3d at 518. a contractor is not subject to this 90-day notice common law, the steps necessary to invoke those rights must be strictly construed. stricken as untimely and its verbal objection is barred, the party would be considered to (beta electric, inc., defendant and counterplaintiff-appellant). ) parkway bank and trust company, into a contract with haso pursuant to which beta would perform electrical work on the order "just for this sort of eventuality." it explained that, on parkway's objection, it had proceedings on the motion bears out beta's assertion that the court did not examine condition precedent to the subcontractor's cause of action on the lien. cordeck sales, may extend the time for filing any pleading or the doing of any act which is the dismissal of the counterclaim pursuant to the judgment on the pleadings. the discretion by striking beta's untimely response to parkway's motion for judgment, no issue regarding whether the mortgage was properly recorded, so we assume that it project. on may 8, 2006, parkway entered into a construction mortgage contract with it asked for a judgment against parkway for the $136,200 lien amount, plus costs, the counterclaim states the lien was filed against 15 units but a count of the justice karnezis delivered the opinion of the court. to notify parkway of the lien would be fatal to its lien claim against parkway. knowledge; beta substantially completed the work on april 8, 2008; it was owed sold at auction for less than the amount due parkway under the mortgage, the court a subcontractor, not a contractor, under the mechanics lien act (770 ilcs 60/1 et seq. response as untimely and barred beta from participating in oral argument during the counsel) the counterclaim does not identify beta as either a contractor or subcontractor. motions were untimely and the court considered them as tantamount to no responses (ii) response required whom the owner has authorized or knowingly permitted to contract, to improve c. grant of judgment of the pleadings in 2006, haso, samel and albin meseljevic started development of a 40-unit assertion that beta waived its objection on appeal to the motion for judgment on the listed units show the total to be 16. of its work to any lending agency, "if known." 770 ilcs 60/24(a) (west 2008); petroline extension of time to file a pleading may be granted "either before or after the expiration a. standard of review 1-09-3396 co. cir. ct. r. 2.1(d). as the marriage of fahy court explained, under rule 2.1(d), (front sheet to be attached to each case) subcontractors who are providing labor and materials for the benefit of an owner's filed outside filing deadlines without leave of court and it had entered the scheduling plaintiff parkway bank and trust company (parkway) filed an action in chancery judgment on the pleadings on the counterclaim, we find the court properly granted the petroline co., 305 ill. app. 3d at 238. compliance with this notice requirement is a 1-09-3396 on each. a "legal description" attached to the lien identified the property as "unit section 24(a) of the mechanics lien act (770 ilcs 60/24(a) (west 2008)); and (b) the commercial condominium project in chicago. at some point, the meseljevics authorized beta to perform the proposed electrical work. a rider to the contract circuit court of 1-09-3396 below and that a failure to object constitutes a waiver of the issue on review. people v. whether beta had good-cause for its late filing before it denied the motion. instead, the enter judgment on the pleadings in favor of parkway or a default judgment against beta 9 the lien stated "owner", i.e., 1633 farwell ave. llc, owned fee simple title to the (beta electric, inc., 1-09-3396 1-09-3396 swore to in the lien. the counterclaim asserts the contract was with owner haso while haso meseljevic, individually; samel untimely filing, it was also within the court's discretion to allow it. once parkway several times, with 1633 farwell ave. llc being added as a grantor/borrower in judgment in order to change the description of one of the condominium units listed in contractor and has a lien ***." (emphasis added.) 770 ilcs 60/1(a) (west circumstances given that the party, as the court here recognized, is clearly objecting to fahy, 208 ill. app. 3d at 685. rule 2.1(d) provides that " `[f]ailure to file a supporting or defendants and granted parkway's motion for a judgment of foreclosure and sale. in 3 the purpose of the mechanics lien act is to protect contractors and manage a structure under construction thereon, is known under this act as a parkway leave to stand as its answer to the counterclaim; and parkway's motion for meseljevics; 1633 farwell ave. llc.; the board of managers of 1633 farwell ave. llc.; because he needed it to prepare his reply. when he informed beta's counsel the against parkway. the court did not err in granting judgment on the pleadings in favor of parkway on the counterclaim. have provided notice of its lien to parkway under section 24 and its lien is invalid the honorable darryl b. simko, judge presiding. on may 7, 2009, parkway filed a motion for judgment on the pleadings on the parkway's mortgage was, therefore, prior to and superior to beta's lien. the court judgment as a matter of law, i.e., similar to a motion for summary judgment but limited requirement. however, the contract itself does not identify haso as the owner, only as august 5, 2008, beta recorded a mechanic's lien against 16 of the condominium units inherent authority to enforce its own orders. county of cook v. illinois fraternal order on august 5, 2008; "a mechanic's lien attaches and to the chancery division. however, as did the fahy court, we will apply the precepts of reinstated the january 2009 default judgment entered against beta. proceeding tried, as here, by the court without a jury is a privilege, not a right, and is beta in order to allow beta to file a counterclaim. as the court explained in response to required by the rules to be done within a limited period, either before or after the contract with "contractor, as agent for and on behalf of owner," and performed rule 2.1(d) in this case. to hold otherwise would mean that where, as here, a party 18 7 court's order granting judgment on the pleadings de novo. mccall, 334 ill. app. 3d at of managers of 1633 farwell ave. llc.; benz kitchens; beta; and unknown owners and 11 the lien was verified by an affidavit signed by beta's president stating he was following described real estate" and followed with the survey description of the property. version of the conversation. he told the court he had initiated the phone call, calling b. preliminary matters 17 (iii) improper default judgment however, as stated above, the record also clearly shows that beta did not llc (`owner') and, haso meseljevic and samel meseljevic (collectively, `contractor') or 226 ill. 2d at 348. in its motion for approval of late filing, beta provided no reason for 1-09-3396 entered a deficiency judgment against the meseljevics and 1633 west farwell ave. ) order terminating all defendants' rights to possession of the property. 1 ) conflicting allegations in the counterclaim, we find beta contracted with and performed before expiration of the june 4 pleading deadline. under rule 183, a motion for llc. on november 6, 2009, it granted parkway's emergency motion to modify the filing deadline. vision point of sale, inc. v. haas, 226 ill. 2d 334, 345-46 (2007), citing plaintiff and counterdefendant-appellee, contractors, inc., 305 ill. app. 3d 234, 239 (1999). naming as defendants the meseljevics individually; 1633 farwell ave. llc.; the board justice karnezis delivered the opinion of the court: why it filed the response late. instead, it merely stated, without explanation, that its 1-09-3396 2 recorded its mortgage against the property after april 11, 2006 (the date of beta's contract with haso. the contract showed haso executed the agreement and whether the complaint or counterclaim, when read in light of the respondent's answer, analysis ilcs 5/2-615(e) (west 2008)). it argued, in relevant part, that beta had not properly court rule183: plaintiff and counterdefendant-appellee, "failure to file a written response to a motion within the time allowed therefor does not (west 2008)) and had failed to properly perfect its lien. we affirm. ) 376 ill. app. 3d 282, 288 (2007), following bajwa v. metropolitan life insurance co., "any person who shall by any contract or contracts, express or implied, or beta's failure to file a response within the time allowed for that response served to rule 183 vests the circuit court with discretion to extend the time a party has to comply sale, inc., 226 ill. 2d at 353-54. mortgage since april 2008. it requested a judgment of foreclosure on its construction ) for owner." on its face, the lien states that haso was a contractor acting on behalf of for judgment on the pleadings without the benefit of a response of some sort. a recording of a mortgage has absolute priority over the mortgage; and beta's lien, owner. the court found beta did not properly perfect its lien and we agree. 1-09-3396 counsel asserted he never consented to the late filing. the court correctly noted that it march 2009, the court vacated the default judgment against beta in order to allow beta against parkway and its lien, therefore, had no priority over parkway's mortgage. it judgment on the pleadings, we must consider three preliminary matters: (i) parkway's to the response and an objection to beta's participation in oral argument regarding the the "contractor," this leads to the conclusion that beta was not itself a contractor but a withdrawal of opposition thereto, but shall be deemed a waiver of the right to file the three meseljevics and by haso as "operating manager" of 1633 farwell ave. llc. on deadline. 1-09-3396 apply in the other divisions of the court." marriage of fahy, 208 ill. app. 3d at 685-86. 1-09-3396 striking the response and barring beta from participating in oral argument on the motion co. cir. ct. r. 2.1(d)), which relates to motion practice in the law division. marriage of 1-09-3396 1-09-3396 response to parkway's motion for judgment on the pleadings on or before june 4, 2009. benz kitchens; beta; and unknown owners and record claimants. the counterclaim barred beta from oral argument because beta waived argument when it filed the 1-09-3396 have raised no objection at all, leading to entry of a default judgment against it at trial reporter of decisions - illinois appellate court objected to the untimely response, the court was required to exercise its discretion to deadline and why an extension of time should be granted." vision point of sale, inc., the evidence strictly against the movant. mccall, 334 ill. app. 3d at 198; gillen v. state 1-09-3396 on august 29, 2008, parkway filed a verified mortgage foreclosure complaint recorded the mortgage on may 11, 2006. the mortgage was modified and/or renewed present the court with an adequate motion for its consideration of whether an extension 3 $136,2000 under the contract as of that date; it recorded its mechanic's lien in that subcontractor has strictly complied with the requirements and the lien has properly evaluating the sufficiency of the counterclaim. gore, 376 ill. app. 3d at 288, citing complaint, which stands as its answer to beta's counterclaim, show parkway is the however, the allegations in the counterclaim regarding who owned the property, who cook county answering memorandum shall not be deemed to be a waiver of the motion, or a darryl b. simko, waive its right to file that response, but not its objection to or right to contest the motion. ) for judgment on the pleadings. the court's scheduling order required beta to file its defendants and counterdefendants perfected its mechanic's lien and the lien, therefore, had no priority over the mortgage. bright v. dicke, 166 ill. 2d 204 (1995). however, the court's discretion to allow a late at the hearing on the motion, parkway's counsel vehemently denied beta's individually; 1633 farwell ave. llc., an illinois jones, 364 ill. app. 3d 740, 748 (2006). but it is not the case that beta failed to object condominium units, those not released from the mortgage. the condominiums having 1-09-3396 ) property described in the lien's legal description, unit 1643n-b, was not the same determine whether it should grant beta leave to file the untimely response. cedzid, slip haso and it attached those exhibits to its counterclaim. such exhibits are treated as no. 1-09-3396


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