Full Text of HB0566 94th General Assembly
HB0566enr 94TH GENERAL ASSEMBLY
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 2. If and only if Senate Bill 1930 of the 94th | 5 |
| General Assembly becomes law in the form in which it passed the | 6 |
| Senate, the Mechanics Lien Act is amended by changing
Section | 7 |
| 21 as follows:
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| (770 ILCS 60/21) (from Ch. 82, par. 21)
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| Sec. 21. Sub-contractor defined; lien of sub-contractor; | 10 |
| notice; size of type; service of notice; amount of lien; | 11 |
| default by contractor.
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| (a) Subject to the provisions of Section 5, every mechanic,
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| worker or other person who shall furnish any labor, services, | 14 |
| material, fixtures, apparatus or
machinery, forms or form work | 15 |
| for the
contractor, or shall furnish any material to be | 16 |
| employed in the process
of construction as a means for | 17 |
| assisting in the erection of the building
or improvement in | 18 |
| what is commonly termed form or form work where
concrete, | 19 |
| cement or like material is used in whole or in part, shall be
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| known under this Act as a sub-contractor, and shall have a lien | 21 |
| for the
value thereof, with interest on such amount from the | 22 |
| date the same is
due, from the same time, on the same property | 23 |
| as provided for the
contractor, and, also, as against the | 24 |
| creditors and assignees, and
personal and legal | 25 |
| representatives of the contractor, on the material,
fixtures, | 26 |
| apparatus or machinery furnished, and on the moneys or other
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| considerations due or to become due from the owner under the | 28 |
| original
contract. | 29 |
| (b) If the legal effect of any contract between the owner | 30 |
| and
contractor is that no lien or claim may be filed or | 31 |
| maintained by any
one and the waiver is not prohibited by this | 32 |
| Act, or that such contractor's lien shall be subordinated to |
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| the interests of any other party, such provision shall be
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| binding; but the only admissible evidence
thereof as against a | 3 |
| subcontractor or material supplier, shall be proof of
actual | 4 |
| notice thereof to him or her before his or her contract is | 5 |
| entered into. Such waiver or subordination provision shall not | 6 |
| be binding on the subcontractor unless set forth in its | 7 |
| entirety in writing in the contract between the contractor and | 8 |
| subcontractor or material supplier.
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| (c) It shall be the duty of each subcontractor who has | 10 |
| furnished, or is
furnishing, labor, services, material, | 11 |
| fixtures, apparatus or machinery, forms or form work for an | 12 |
| existing owner-occupied single
family residence, in order to | 13 |
| preserve his lien, to notify the occupant
either personally or | 14 |
| by certified mail, return receipt requested,
addressed to the | 15 |
| occupant or his agent of the residence within 60 days
from his | 16 |
| first furnishing labor, services, material, fixtures, | 17 |
| apparatus or machinery, forms or form work, that he is | 18 |
| supplying labor, services, material, fixtures, apparatus or | 19 |
| machinery, forms or form work provided, however, that any | 20 |
| notice given after 60
days by the subcontractor shall preserve | 21 |
| his lien, but only to the
extent that the owner has not been | 22 |
| prejudiced by payments made prior to
receipt of the notice. The | 23 |
| notification shall include a warning to the
owner that before | 24 |
| any payment is made to the contractor, the owner
should receive | 25 |
| a waiver of lien executed by each subcontractor who has
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| furnished labor, services, material, fixtures, apparatus or | 27 |
| machinery, forms or form work.
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| The notice shall contain the name and address of the | 29 |
| subcontractor or
material man, the date he started to work or | 30 |
| to deliver materials, the
type of work done and to be done or | 31 |
| the type of materials delivered and
to be delivered, and the | 32 |
| name of the contractor requesting the work.
The notice shall | 33 |
| also contain the following warning:
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| "NOTICE TO OWNER
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| The subcontractor providing this notice has performed work | 36 |
| for or
delivered material to your home improvement contractor. |
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| These services or
materials are being used in the improvements | 2 |
| to your residence and entitle
the subcontractor to file a lien | 3 |
| against your residence if the services or
materials are not | 4 |
| paid for by your home improvement contractor. A lien
waiver | 5 |
| will be provided to your contractor when the subcontractor is | 6 |
| paid,
and you are urged to request this waiver from your | 7 |
| contractor when paying
for your home improvements."
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| Such warning shall be in at least 10 point bold face type. | 9 |
| For
purposes of this Section, notice by certified mail is | 10 |
| considered served
at the time of its mailing.
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| (d) In no case, except as hereinafter provided, shall the | 12 |
| owner be
compelled to pay a greater sum for or on account of | 13 |
| the completion of
such house, building or other improvement | 14 |
| than the price or sum
stipulated in said original contract or | 15 |
| agreement, unless payment be
made to the contractor or to his | 16 |
| order, in violation of the rights and
interests of the persons | 17 |
| intended to be benefited by this act: Provided,
if it shall | 18 |
| appear to the court that the owner and contractor
fraudulently, | 19 |
| and for the purpose of defrauding sub-contractors fixed an
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| unreasonably low price in their original contract for the | 21 |
| erection or
repairing of such house, building or other | 22 |
| improvement, then the court
shall ascertain how much of a | 23 |
| difference exists between a fair price for
labor, services, | 24 |
| material, fixtures, apparatus or machinery, forms or form work | 25 |
| used in said house, building or other improvement,
and the sum | 26 |
| named in said original contract, and said difference shall
be | 27 |
| considered a part of the contract and be subject to a lien. But | 28 |
| where
the contractor's statement, made as provided in Section | 29 |
| 5, shows the
amount to be paid to the sub-contractor, or party | 30 |
| furnishing material,
or the sub-contractor's statement, made | 31 |
| pursuant to Section 22, shows
the amount to become due for | 32 |
| material; or notice is given to the owner,
as provided in | 33 |
| Sections 24 and 25, and thereafter such sub-contract
shall be | 34 |
| performed, or material to the value of the amount named in such
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| statements or notice, shall be prepared for use and delivery, | 36 |
| or
delivered without written protest on the part of the owner |
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| previous to
such performance or delivery, or preparation for | 2 |
| delivery, then, and in
any of such cases, such sub-contractor | 3 |
| or party furnishing or preparing
material, regardless of the | 4 |
| price named in the original contract, shall
have a lien | 5 |
| therefor to the extent of the amount named in such
statements | 6 |
| or notice. In case of default or abandonment by the
contractor, | 7 |
| the sub-contractor or party furnishing material, shall have
and | 8 |
| may enforce his lien to the same extent and in the same manner | 9 |
| that
the contractor may under conditions that arise as provided | 10 |
| for in
Section 4 of this Act, and shall have and may exercise | 11 |
| the same rights
as are therein provided for the contractor.
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| (e) Any provision in a contract, agreement, or | 13 |
| understanding,
when payment from a contractor to a | 14 |
| subcontractor or supplier is
conditioned upon receipt of the | 15 |
| payment from any other party including a
private or public | 16 |
| owner, shall not be a defense by the
party responsible for | 17 |
| payment to a claim brought under Section 21, 22, 23,
or 28 of | 18 |
| this Act against the party. For the purpose of this Section,
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| "contractor" also includes subcontractor or supplier. The | 20 |
| provisions of
Public Act 87-1180 shall be construed as
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| declarative of existing law and not as a new enactment.
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| (Source: P.A. 87-361; 87-362; 87-895; 87-1180; 88-45; | 23 |
| 94SB1930eng.)
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| Section 5. The Tool and Die Lien Act is amended by changing | 25 |
| Sections 1, 2, 3, 5, and 6 and by adding Sections 4.1 and 5.1 as | 26 |
| follows:
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| (770 ILCS 105/1) (from Ch. 82, par. 351)
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| Sec. 1. Lien. | 29 |
| (A) Plastic or metal processors or persons conducting a
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| plastic or metal processing business shall have a lien on the | 31 |
| tools, dies,
molds, jigs, fixtures, forms or patterns in their | 32 |
| possession belonging to a
customer, for the balance due them | 33 |
| from such customer for plastic or metal
processing work, and | 34 |
| for all materials related to such work. The processor
may |
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| retain possession of the tool, die, mold, jig, fixture, form or | 2 |
| pattern
until such balance is paid, subject only to a security | 3 |
| interest
properly perfected pursuant to Article 9 of the | 4 |
| Uniform Commercial
Code.
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| (B) A toolmaker has a lien on all special tools produced by | 6 |
| it and on all proceeds from the assignment, sale, transfer, | 7 |
| exchange, or other disposition of the special tool produced by | 8 |
| it until the toolmaker is paid in full all amounts due the | 9 |
| toolmaker for the production of the special tool. For the | 10 |
| purpose of this subsection:
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| (1) the lien attaches when the special tool is | 12 |
| delivered from the toolmaker to the customer;
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| (2) the amount of the lien is the amount that a | 14 |
| customer or processor owes the toolmaker for the | 15 |
| fabrication, repair, or modification of the special tool; | 16 |
| and
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| (3) the toolmaker retains the lien even if the | 18 |
| toolmaker is not a possession of the special tool for which | 19 |
| the lien is claimed.
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| (Source: P.A. 85-381.)
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| (770 ILCS 105/2) (from Ch. 82, par. 352)
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| Sec. 2. Definitions. For purposes of this Act:
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| (A) The term "processor" means any individual or entity | 24 |
| including, but
not limited to, a tool or die maker, who | 25 |
| contracted with, or uses a tool,
die, mold, jig, fixture, form | 26 |
| or pattern to manufacture, assemble, or
otherwise make a | 27 |
| plastic or metal product or products for a customer.
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| (B) The term "customer" means any individual or entity who | 29 |
| contracted with,
or caused a plastic or metal processor to use | 30 |
| a tool, die, mold, jig,
fixture, form or pattern to | 31 |
| manufacture, assemble, or otherwise make
plastic or metal | 32 |
| components or products.
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| (C) The term "special tool" means a tool, die, mold, jig, | 34 |
| fixture, form ,
or pattern , or part used to manufacture, | 35 |
| assemble, or otherwise make plastic or
metal components or |
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| products.
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| (D) The term "toolmaker" means a person including, but not | 3 |
| limited to, a mold builder, model maker, patternmaker, molder, | 4 |
| die maker, metal former, jig and fixture builder, die sinker, | 5 |
| die caster, mold designer, mold programmer, die designer, die | 6 |
| programmer, and mold or die engineer, that fabricates, cuts, | 7 |
| casts, forms, or designs molds for the plastic industry or dies | 8 |
| for the metal forming industry.
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| (Source: P.A. 85-381.)
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| (770 ILCS 105/3) (from Ch. 82, par. 353)
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| Sec. 3. Notice. Before enforcing a
such lien as provided | 12 |
| for in subsection (A) of Section 1 of this Act , an initial | 13 |
| notice in
writing shall be given to the customer, either | 14 |
| delivered personally or sent
by registered mail to the last | 15 |
| known address of the customer. This notice
shall state that a | 16 |
| lien is claimed in the amount therein set forth or
thereto | 17 |
| attached for processing work contracted or performed for the
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| customer. This notice shall also include a demand for payment. | 19 |
| Before enforcing a lien as provided in subsection (B) of | 20 |
| Section 1 of this Act, an initial notice in writing shall be | 21 |
| given to the customer and processor, either delivered | 22 |
| personally or sent by registered mail to the last known address | 23 |
| of the customer and the processor. The notice shall state that | 24 |
| a lien is claimed in the amount set forth in or attached to the | 25 |
| notice for the fabrication, repair, or modification of the | 26 |
| special tool. The notice shall also include a demand for | 27 |
| payment.
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| (Source: P.A. 85-381.)
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| (770 ILCS 105/4.1 new)
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| Sec. 4.1. Possession of special tool. If the toolmaker has | 31 |
| not been paid the amount claimed in the notice within 90 days | 32 |
| after the initial notice is received by the customer and by the | 33 |
| processor, the toolmaker has a right to possession of the | 34 |
| special tool and may do the following: |
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| (1) enforce the right to possession of the special tool | 2 |
| by judgement, foreclosure, or any available judicial | 3 |
| procedure;
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| (2) commence a civil action in circuit court to enforce | 5 |
| the lien, including by obtaining a judgment for the amount | 6 |
| owed and a judgment permitting the special tool to be sold | 7 |
| at an execution sale;
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| (3) take possession of the special tool, if possession | 9 |
| without judicial process can be done without breach of the | 10 |
| peace; and
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| (4) sell the special tool in a public auction. | 12 |
| A toolmaker that suffers damages under this Act may obtain | 13 |
| appropriate legal and equitable relief, including damages, in a | 14 |
| civil action. The court shall award the toolmaker that is the | 15 |
| prevailing party reasonable attorney's fees, court costs, and | 16 |
| expenses related to enforcement of the lien.
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| (770 ILCS 105/5) (from Ch. 82, par. 355)
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| Sec. 5. Second notice; publication ; sale by processor . | 19 |
| (A) Before a processor may sell
the die, mold or special | 20 |
| tool, the processor shall provide a second written
notification | 21 |
| to the customer, by registered mail, return receipt requested.
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| The second notice shall include the following information:
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| (1) The processor's intention to sell the die, mold, or | 24 |
| special tool;
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| (2) A description of the die, mold, or special tool to be | 26 |
| sold;
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| (3) The time and place of the sale; and
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| (4) An itemized statement for the amount due.
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| (B) In addition to this notification by mail, the processor | 30 |
| shall publish in
a newspaper of general circulation in the | 31 |
| place where the die, mold, or
special tool is being held for | 32 |
| sale by the processor, notice of the
processor's intention to | 33 |
| sell the die, mold, or special tool. The notice
shall include a | 34 |
| description of the die, mold, or special tool and name of the | 35 |
| customer.
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| (Source: P.A. 85-381.)
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| (770 ILCS 105/5.1 new) | 3 |
| Sec. 5.1. Second notice; publication; sale by toolmaker. | 4 |
| (A) Before a toolmaker may sell the special tool, the | 5 |
| toolmaker shall provide a second written notification to the | 6 |
| customer and processor, by registered mail, return receipt | 7 |
| requested. The second notice shall include the following | 8 |
| information: | 9 |
| (1) the toolmaker's intention to sell the special tool;
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| (2) a description of the special tool to be sold;
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| (3) the time and place of the sale; and
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| (4) an itemized statement for the amount due.
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| (B) In addition to this notification by mail, the toolmaker | 14 |
| shall publish in a newspaper of general circulation in the | 15 |
| place where the special tool is being held for sale by the | 16 |
| toolmaker, notice of the toolmaker's intention to sell the | 17 |
| special tool. The notice shall include a description of the | 18 |
| special tool and name of the customer and processor.
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| (770 ILCS 105/6) (from Ch. 82, par. 356)
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| Sec. 6. Inspection. (A) Prior to the sale of any die, mold | 21 |
| or special
tool in accordance with this Act, such item must be | 22 |
| available for
inspection, upon request, by members of the | 23 |
| public during normal business
hours for a period of at least 2 | 24 |
| weeks prior to the sale.
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| (B) If the sale is for a sum greater than the amount of the | 26 |
| lien, the
excess shall be paid to any prior lienholder and any | 27 |
| remainder to the customer and the processor .
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| (C) A sale shall not be made or a possession shall not be | 29 |
| obtained under this Act if it would be in violation
of any | 30 |
| right of a customer or a processor under federal patent , | 31 |
| bankruptcy, or copyright law.
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| (Source: P.A. 85-381.)
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