Illinois General Assembly - Full Text of Public Act 094-0615
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Public Act 094-0615


 

Public Act 0615 94TH GENERAL ASSEMBLY



 


 
Public Act 094-0615
 
HB0566 Enrolled LRB094 05756 LCB 35808 b

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

Effective Date: 1/1/2006