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HB0566 Enrolled |
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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 |
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| General Assembly becomes law in the form in which it passed the |
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| Senate, the Mechanics Lien Act is amended by changing
Section |
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| 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; |
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| notice; size of type; service of notice; amount of lien; |
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| 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, |
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| material, fixtures, apparatus or
machinery, forms or form work |
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| for the
contractor, or shall furnish any material to be |
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| employed in the process
of construction as a means for |
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| assisting in the erection of the building
or improvement in |
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| what is commonly termed form or form work where
concrete, |
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| 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 |
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| for the
value thereof, with interest on such amount from the |
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| date the same is
due, from the same time, on the same property |
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| as provided for the
contractor, and, also, as against the |
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| creditors and assignees, and
personal and legal |
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| representatives of the contractor, on the material,
fixtures, |
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| 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 |
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| original
contract. |
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| (b) If the legal effect of any contract between the owner |
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| and
contractor is that no lien or claim may be filed or |
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| maintained by any
one and the waiver is not prohibited by this |
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| 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 |
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| subcontractor or material supplier, shall be proof of
actual |
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| notice thereof to him or her before his or her contract is |
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| entered into. Such waiver or subordination provision shall not |
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| be binding on the subcontractor unless set forth in its |
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| entirety in writing in the contract between the contractor and |
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| subcontractor or material supplier.
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| (c) It shall be the duty of each subcontractor who has |
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| furnished, or is
furnishing, labor, services, material, |
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| fixtures, apparatus or machinery, forms or form work for an |
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| existing owner-occupied single
family residence, in order to |
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| preserve his lien, to notify the occupant
either personally or |
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| by certified mail, return receipt requested,
addressed to the |
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| occupant or his agent of the residence within 60 days
from his |
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| first furnishing labor, services, material, fixtures, |
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| apparatus or machinery, forms or form work, that he is |
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| supplying labor, services, material, fixtures, apparatus or |
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| machinery, forms or form work provided, however, that any |
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| notice given after 60
days by the subcontractor shall preserve |
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| his lien, but only to the
extent that the owner has not been |
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| prejudiced by payments made prior to
receipt of the notice. The |
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| notification shall include a warning to the
owner that before |
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| any payment is made to the contractor, the owner
should receive |
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| a waiver of lien executed by each subcontractor who has
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| furnished labor, services, material, fixtures, apparatus or |
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| machinery, forms or form work.
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| The notice shall contain the name and address of the |
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| subcontractor or
material man, the date he started to work or |
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| to deliver materials, the
type of work done and to be done or |
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| the type of materials delivered and
to be delivered, and the |
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| name of the contractor requesting the work.
The notice shall |
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| also contain the following warning:
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| "NOTICE TO OWNER
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| The subcontractor providing this notice has performed work |
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| for or
delivered material to your home improvement contractor. |
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| These services or
materials are being used in the improvements |
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| to your residence and entitle
the subcontractor to file a lien |
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| against your residence if the services or
materials are not |
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| paid for by your home improvement contractor. A lien
waiver |
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| will be provided to your contractor when the subcontractor is |
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| paid,
and you are urged to request this waiver from your |
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| contractor when paying
for your home improvements."
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| Such warning shall be in at least 10 point bold face type. |
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| For
purposes of this Section, notice by certified mail is |
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| considered served
at the time of its mailing.
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| (d) In no case, except as hereinafter provided, shall the |
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| owner be
compelled to pay a greater sum for or on account of |
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| the completion of
such house, building or other improvement |
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| than the price or sum
stipulated in said original contract or |
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| agreement, unless payment be
made to the contractor or to his |
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| order, in violation of the rights and
interests of the persons |
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| intended to be benefited by this act: Provided,
if it shall |
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| appear to the court that the owner and contractor
fraudulently, |
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| and for the purpose of defrauding sub-contractors fixed an
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| unreasonably low price in their original contract for the |
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| erection or
repairing of such house, building or other |
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| improvement, then the court
shall ascertain how much of a |
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| difference exists between a fair price for
labor, services, |
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| material, fixtures, apparatus or machinery, forms or form work |
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| used in said house, building or other improvement,
and the sum |
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| named in said original contract, and said difference shall
be |
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| considered a part of the contract and be subject to a lien. But |
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| where
the contractor's statement, made as provided in Section |
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| 5, shows the
amount to be paid to the sub-contractor, or party |
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| furnishing material,
or the sub-contractor's statement, made |
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| pursuant to Section 22, shows
the amount to become due for |
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| material; or notice is given to the owner,
as provided in |
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| Sections 24 and 25, and thereafter such sub-contract
shall be |
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| 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, |
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| or
delivered without written protest on the part of the owner |
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| previous to
such performance or delivery, or preparation for |
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| delivery, then, and in
any of such cases, such sub-contractor |
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| or party furnishing or preparing
material, regardless of the |
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| price named in the original contract, shall
have a lien |
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| therefor to the extent of the amount named in such
statements |
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| or notice. In case of default or abandonment by the
contractor, |
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| the sub-contractor or party furnishing material, shall have
and |
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| may enforce his lien to the same extent and in the same manner |
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| that
the contractor may under conditions that arise as provided |
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| for in
Section 4 of this Act, and shall have and may exercise |
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| the same rights
as are therein provided for the contractor.
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| (e) Any provision in a contract, agreement, or |
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| understanding,
when payment from a contractor to a |
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| subcontractor or supplier is
conditioned upon receipt of the |
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| payment from any other party including a
private or public |
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| owner, shall not be a defense by the
party responsible for |
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| payment to a claim brought under Section 21, 22, 23,
or 28 of |
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| this Act against the party. For the purpose of this Section,
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| "contractor" also includes subcontractor or supplier. The |
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| 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; |
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| 94SB1930eng.)
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| Section 5. The Tool and Die Lien Act is amended by changing |
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| Sections 1, 2, 3, 5, and 6 and by adding Sections 4.1 and 5.1 as |
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| follows:
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| (770 ILCS 105/1) (from Ch. 82, par. 351)
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| Sec. 1. Lien. |
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| (A) Plastic or metal processors or persons conducting a
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| plastic or metal processing business shall have a lien on the |
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| tools, dies,
molds, jigs, fixtures, forms or patterns in their |
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| possession belonging to a
customer, for the balance due them |
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| from such customer for plastic or metal
processing work, and |
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| for all materials related to such work. The processor
may |
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LRB094 05756 LCB 35808 b |
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| retain possession of the tool, die, mold, jig, fixture, form or |
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| pattern
until such balance is paid, subject only to a security |
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| interest
properly perfected pursuant to Article 9 of the |
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| Uniform Commercial
Code.
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| (B) A toolmaker has a lien on all special tools produced by |
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| it and on all proceeds from the assignment, sale, transfer, |
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| exchange, or other disposition of the special tool produced by |
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| it until the toolmaker is paid in full all amounts due the |
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| toolmaker for the production of the special tool. For the |
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| purpose of this subsection:
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| (1) the lien attaches when the special tool is |
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| delivered from the toolmaker to the customer;
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| (2) the amount of the lien is the amount that a |
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| customer or processor owes the toolmaker for the |
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| fabrication, repair, or modification of the special tool; |
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| and
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| (3) the toolmaker retains the lien even if the |
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| toolmaker is not a possession of the special tool for which |
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| 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 |
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| including, but
not limited to, a tool or die maker, who |
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| contracted with, or uses a tool,
die, mold, jig, fixture, form |
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| or pattern to manufacture, assemble, or
otherwise make a |
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| plastic or metal product or products for a customer.
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| (B) The term "customer" means any individual or entity who |
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| contracted with,
or caused a plastic or metal processor to use |
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| a tool, die, mold, jig,
fixture, form or pattern to |
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| manufacture, assemble, or otherwise make
plastic or metal |
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| components or products.
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| (C) The term "special tool" means a tool, die, mold, jig, |
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| fixture, form ,
or pattern , or part used to manufacture, |
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| 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 |
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| limited to, a mold builder, model maker, patternmaker, molder, |
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| die maker, metal former, jig and fixture builder, die sinker, |
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| die caster, mold designer, mold programmer, die designer, die |
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| programmer, and mold or die engineer, that fabricates, cuts, |
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| casts, forms, or designs molds for the plastic industry or dies |
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| 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 |
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| for in subsection (A) of Section 1 of this Act , an initial |
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| notice in
writing shall be given to the customer, either |
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| delivered personally or sent
by registered mail to the last |
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| known address of the customer. This notice
shall state that a |
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| lien is claimed in the amount therein set forth or
thereto |
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| attached for processing work contracted or performed for the
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| customer. This notice shall also include a demand for payment. |
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| Before enforcing a lien as provided in subsection (B) of |
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| Section 1 of this Act, an initial notice in writing shall be |
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| given to the customer and processor, either delivered |
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| personally or sent by registered mail to the last known address |
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| of the customer and the processor. The notice shall state that |
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| a lien is claimed in the amount set forth in or attached to the |
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| notice for the fabrication, repair, or modification of the |
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| special tool. The notice shall also include a demand for |
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| 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 |
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| not been paid the amount claimed in the notice within 90 days |
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| after the initial notice is received by the customer and by the |
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| processor, the toolmaker has a right to possession of the |
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| special tool and may do the following: |
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| (1) enforce the right to possession of the special tool |
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| by judgement, foreclosure, or any available judicial |
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| procedure;
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| (2) commence a civil action in circuit court to enforce |
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| the lien, including by obtaining a judgment for the amount |
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| owed and a judgment permitting the special tool to be sold |
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| at an execution sale;
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| (3) take possession of the special tool, if possession |
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| without judicial process can be done without breach of the |
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| peace; and
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| (4) sell the special tool in a public auction. |
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| A toolmaker that suffers damages under this Act may obtain |
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| appropriate legal and equitable relief, including damages, in a |
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| civil action. The court shall award the toolmaker that is the |
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| prevailing party reasonable attorney's fees, court costs, and |
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| 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 . |
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| (A) Before a processor may sell
the die, mold or special |
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| tool, the processor shall provide a second written
notification |
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| 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 |
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| special tool;
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| (2) A description of the die, mold, or special tool to be |
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| 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 |
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| shall publish in
a newspaper of general circulation in the |
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| place where the die, mold, or
special tool is being held for |
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| sale by the processor, notice of the
processor's intention to |
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| sell the die, mold, or special tool. The notice
shall include a |
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| description of the die, mold, or special tool and name of the |
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| customer.
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| (Source: P.A. 85-381.)
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| (770 ILCS 105/5.1 new) |
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| Sec. 5.1. Second notice; publication; sale by toolmaker. |
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| (A) Before a toolmaker may sell the special tool, the |
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| toolmaker shall provide a second written notification to the |
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| customer and processor, by registered mail, return receipt |
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| requested. The second notice shall include the following |
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| information: |
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| (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 |
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| shall publish in a newspaper of general circulation in the |
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| place where the special tool is being held for sale by the |
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| toolmaker, notice of the toolmaker's intention to sell the |
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| special tool. The notice shall include a description of the |
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| 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 |
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| or special
tool in accordance with this Act, such item must be |
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| available for
inspection, upon request, by members of the |
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| public during normal business
hours for a period of at least 2 |
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| weeks prior to the sale.
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| (B) If the sale is for a sum greater than the amount of the |
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| lien, the
excess shall be paid to any prior lienholder and any |
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| remainder to the customer and the processor .
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| (C) A sale shall not be made or a possession shall not be |
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| obtained under this Act if it would be in violation
of any |
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| right of a customer or a processor under federal patent , |
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| bankruptcy, or copyright law.
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| (Source: P.A. 85-381.)
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