(d) When payment to a business broker is due in installments, a portion of
which is due only after the conveyance or transfer of the tangible assets, any claim
for lien for those payments due after the transfer or conveyance may be filed
at any time subsequent to the transfer or conveyance of the tangible assets and prior
to the date on which the payment is due but shall only be effective as a lien
against the tangible assets to the extent moneys
are still owed to the
transferor by the transferee. In all other respects, the lien shall attach
as
described in this subsection.
(e) If a business broker has a written agreement with a prospective
purchaser, then the lien shall attach upon the prospective
purchaser purchasing or otherwise accepting a
conveyance
or
transfer of the real property or tangible personal property of the business
and
the filing of a notice of lien (i) in the recorder's office of the county in
which the real
property is located, as to real property, and (ii) in the Office of the
Secretary of State, as
to tangible personal property, by
the
business
broker within 90 days after the
transfer to the purchaser. The lien shall
attach to the interest purchased by the purchaser as of the date of the
filing of the notice of lien and does not relate back to the date of the
written contract.
(f) The business broker shall, within 10 days after filing its notice of
lien,
mail a copy of the notice of lien to the owner of the property by depositing it in the United States mail, registered
or certified mail, with return receipt requested, or personally
serve a copy of the notice on the
owner of record or his agent. Mailing of
the copy of the notice of claim for lien is effective
if mailed to the seller at the address of the business that is the subject of
the notice of lien
or to another address that the seller or purchaser has provided in writing to
the business
broker. The broker's lien shall be
unenforceable if mailing of the copy of the notice of lien does not occur at
the time and in the manner required by this Act.
(g) A business broker may bring suit to enforce a lien in the circuit court
(i) in the county where the real property is located,
as to real property, or (ii) as to tangible personal property, either in the
county where the
personal property is located or where the principal office of the owner of the
personal
property, or the owner's residence, is located, by filing a
complaint and sworn affidavit that the lien has been filed.
(h) The person claiming a lien shall, within 2 years after filing the lien,
commence proceedings by filing a complaint. Failure to commence proceedings
within 2 years after filing the lien shall extinguish the lien. No subsequent
notice of lien may be given for the same claim nor may that claim be asserted
in any proceedings under this Act.
(i) A complaint under this Section shall have attached to it a copy of the
written contract on which the lien is founded and shall
contain a description of the services performed, the amount
due
and unpaid, a description of the tangible assets of the business that are subject to the lien, and other facts necessary for a full
understanding of the rights of the parties. The plaintiff shall make all
interested parties, of whose interest the plaintiff is notified or has
actual or constructive knowledge, defendants to the action and shall issue
summons and provide service
as in other civil actions. When any defendant resides or has gone out of the
State, or on inquiry cannot be found, or is concealed within this State so that
process cannot be served on that defendant, the plaintiff shall cause a notice
to be given to that defendant, or cause a copy of the complaint to be served
upon that defendant, in the manner and upon the same conditions as in other
civil actions. Failure of the plaintiff to provide proper summons or notice
shall be grounds for judgment against the plaintiff with prejudice.
Every lien claimed under this Act shall be foreclosed as provided in the
Illinois Mortgage
Foreclosure Law, if the lien is on real property, or as provided in the Uniform
Commercial Code, if the lien is on personal property.
(j) The lien notice shall state the name and address of the claimant,
the name of the
purchaser or seller whose property or assets are subject to the lien, a
description of the real or personal property that is subject to the lien, the amount for which the lien is claimed,
and the registration number of the business broker. The notice of lien shall
recite that the information contained in the notice is true and accurate to the
knowledge of the signer. The notice of lien shall be signed
by the
business broker or by a person authorized to sign on behalf of the business
broker and shall be verified.
(k) Whenever a claim for lien has been filed with the Office of the
Secretary of State or the county recorder's office and a condition occurs
that would preclude the business
broker from receiving compensation under the terms of the business broker's
written agreement, the business broker shall provide to the purchaser of the
business, if the lien is filed against the purchaser's assets of the business
that are subject to this Act, or the seller of the
business, if the lien is filed against the seller's assets of the business
that are subject to this Act,
within 10 days following
demand by that party, a written release or
satisfaction of the lien.
(l) Upon written demand of the owner, lienee, or other authorized agent,
served on the person claiming the lien requiring suit to be commenced to
enforce the lien or answer to be filed in a pending suit, a suit shall be
commenced or answer filed within 30 days thereafter, or the lien shall be
extinguished. Service may be by registered or certified mail, return receipt
requested, or by personal service.
(m) If a claim for lien has been filed with the Office of the Secretary
of State or the county recorder's office and
is paid, the business broker shall acknowledge
satisfaction or release of the lien, in writing, within 5
days
after payment.
(n) The cost of proceedings brought under this Act, including reasonable attorneys' fees, costs, and prejudgment
interest due to the prevailing party, shall be borne by the
nonprevailing
party
or parties. When more than one party is responsible for costs, fees, and
prejudgment interest, the costs, fees, and prejudgment interest shall be
equitably apportioned by the court among those responsible parties.
(o) Prior recorded liens and mortgages shall have priority over a broker's
lien. A prior recorded lien shall include, without limitation, (i) a
mechanic's lien claim, (ii) prior recorded liens securing revolving
credit or future advances under construction loans as
described in Section
15-1302 of the Code of Civil Procedure, and (iii) prior recorded liens
perfected under the Uniform Commercial Code.
(p) No lien under this Section 10-115 shall attach to any real property
asset of a business unless and until a notice of lien is filed with the
recorder of the county in which the real property asset is located. A lien
recorded under this subsection (p) shall otherwise be subject to the same
notice, enforcement,
and limitations as any other lien under this Section. A copy of the notice of
lien recorded under this subsection (p) shall be filed with the Secretary of
State.
(Source: P.A. 91-194, eff. 7-20-99; 91-534, eff. 1-1-00;
92-16, eff. 6-28-01.)
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