Petitions For Relief From Judgments Under 7351lcs 5/2-1401 By Kimberly A. Davis and James F.

Mccluskey Pursuant to the Illinois Code of Civil Procedure, a litigant is allowed the proverbial two bites at the apple to vacate a default order or other final order or judgment. Practitioners should be aware of the distinctions among the two statutes which allow such relief, as well as a cautionary instruction regarding the statute of limitations. Motions to Vacate within 30 Davs The first opportunity to vacate a default order, final order or judgment is described in 735 ILCS 5/2-1301. Section 1301 is a discretionary rule allowing the court to set aside a default order before final order or judgment. Additionally, Section 1301 allows the court to vacate a final order or judgment upon motion filed within 30 days after its entry, and "upon any terms and conditions that shall be reasonable.,,1 In essence, so long as the moving party provides the Court with a reasonable justification for vacating the order or judgment, the Court will likely exercise its discretion and grant the motion.2 In granting such a motion, however, the Court is not obligated to set aside the final order or judgment as to all parties; in the event the Court limits its order vacating to the moving party, the final order or judgment remains binding as to the other parties.3 Relief after 30 Davs from entry of Final Order or Judament If the final order or judgment was entered more than 30 days prior to the filing of any motion to vacate, the Illinois legislature affords a litigant a second chance for relief under 735 ILCS 5/2-1401. In order to seek relief from a final Order or Judgment that is entered after 30 days, a petition must be filed pursuant to 735 ILCS 5/2-1401. Courts have long noted that the purpose of the 1401 petition is to make the court aware of those facts which do not appear in the record that, if known, would have prevented entry of the final order or judgment. See. e.g. Prenam No. 2, Inc. v. Village of Schiller Park, 2006 WL 2381564 (1st Dist. 2006). Requirements for the Petition to Vacate The time limitation on the filing of the petition is two years from the date of the final order or judgment. The only exceptions to the two-year filing period are when the person seeking relief is under legal disability or duress, or when the ground for the relief is fraudulently concealed.4 A petition to vacate filed under Section 1401 must be filed in the same proceeding and must be supported by affidavit "or other appropriate showing as to matters not of record.,,5 According to the statute, the petitioner must show, based upon a preponderance of the evidence, (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original action; and (3) due diligence in filing the petition. See, ~ Smith v. Airoom, 499 N.E.2d 1381 (III. 1986); Juszcyzk v. Flores, 777 N.E.2d 454 (1st Dist. 2002). The decision regarding whether to grant or deny a petition to vacate lies within the sound discretion of the court and depends upon the equities involved and the facts presented. Pirman v. A&M Cartage, Inc., 215 III. App. 3d 993, 674 N.E.2d 874 (1st Dist. 1996). As the Illinois Supreme Court recently noted, such an equitable power should be exercised" for the prevention of injury and for the furtherance of justice." Paul v. Gerald Adelman & Associates, Ltd., 223 1I1.2d 85, 858 N.E.2d 1 (III. 2006). According to the rule, "All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which the relief is sought or the proceedings in which it was entered." (Emphasis added.) These petitions do not affect the Order or judgment or suspend its operations, such as collection procedures initiated after the judgment.

Requirement Number 1: Meritorious Claim/Defense The first requirement, that the petitioner show the existence of a meritorious defense or claim, is selfexplanatory and easy to meet. Requirement Number 2: Due Diligence in the Underlying Action A petitioner must show the Court that his failure to prosecute or defend a lawsuit was the result of an excusable mistake and that, under the circumstances, she acted reasonably and not negligently in failing to resist the judgment. Id. It is within the sound discretion of the Circuit Court, depending upon the facts and equities presented by the petitioner, as to whether or not such a petition should be granted. Ostendorf v. International Harvester Co., 433 N.E.2d 253 (1982) (emphasis added). There is no bright line rule for judging due diligence. Paul v. Gerald Adelman & Associates, Ltd., 233 III. 2d 85, 306 III. Dec. 556 (III. 2006) (noting that a six-month delay in filing a Section 1401 petition "does not, ipso facto, demonstrate a fatal lack of diligence.") ~ at 100. In this key element of the petition, the petitioner must set forth in detail the "facts and equities" which support petitioners efforts to diligently prosecute or defend the underlying case via Affidavit and relevant documentation. This documentation could consist of letters to opposing counsel, service attempts, compliance with the Courts orders, appearance in court, and the like. It is key to remember that a petitioner may not rely upon conclusions when fashioning her petition. She must submit a factual affidavit and should include documentation supporting petitioners diligence. If the respondent to the petition believes that the petitioner lacked diligence in the underlying action, it would behoove her to apprise the court of this via respondents own affidavit and documents (e.g., Rule 201 (k) letters, copies of court orders concerning discovery, DWP orders, etc. that illustrate petitioners lack of diligence in the underlying case(s)). Inclusion of evidentiary documentation and material in either sides pleadings assures that, in the event the matter is appealed, the appellate court would have the benefit of reviewing a more comprehensive record. The Illinois Supreme Court in its decision in Smith v. Airoom, Inc., 114 1I1.2d 209 (1986), stated that a party relying on a Section 1401 petition must show that he failed to appear because of an excusable mistake and not because of his own fault or negligence. In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances intended upon the entry of a judgment must be considered, including the conduct of the litigants and their attorneys. In 2005, the First District noted that "the current trend in Illinois ... [has] been to relax the due diligence standard where necessary to prevent the unjust entry of default judgments and to effect substantial justice." Coleman v. Caliendo, 361 III. App. 3d 850, 838 N.E.2d 155, 159 (1st Dist. 2005), citing In re County Treasurer, 347 III.App.3d at 774,283 III. Dec. 201, 807 N.E.2d 1042, quoting Pirman v. A&M Cartage, Inc., 285 III. App. 3d 993, 1003, 674 N.E.2d 874 (1996). In evaluating the diligence of the petitioner, Courts have considered the principals of justice and clean hands. For example, a party opposing a petition to vacate may not benefit from his conduct, or lack thereof, in notifying the petitioner of the action taken by the Court in the underlying case. In Halle v. Robertson, 219 III. App. 3d 564, 579 N.E.2d 1243 (2d Dist. 1991), the court specifically noted the fact that "plaintiff failed to notify defendant of the entry of the default judgment in a timely manner, [and] failed to place the garnishment summons for service in a timely manner" as "clearly sufficient grounds" to vacate the default. Likewise, in Pirman v. A&M Cartage, Inc., 285 III. App. 3d 993,1003-4,674 N.S.2d 874 (1st Dist. 1996), the court held that the plaintiffs failure to provide notice of entry of default preventing the defendant from discovering a default until citation proceedings required vacating the default "even absent

due diligence".!Q. As Halle noted, "all of the circumstances ... including the conduct of the litigants and their attorneys" factor into reasonableness. Halle v. Robertson, 219 III. App. 3d 564, 569, 579 .E.2d 1243 (2d Dist. 1991). Likewise, in Cunningham v. Millers General Insurance Company, 188 III.App.3d 689, 554 N.E.2d 441 (4th Dist. 1989), the Fourth District determined that a reasonable and excusable mistake for failing to file an answer and defenses was the "breakdown in defendants customary procedure for processing legal documents." 1st. at 694-5. In Cunningham, the defendant was served with the complaint, forwarded it to counsel in Chicago who prepared an answer and then arranged for local counsel in Decatur to file the answer after delivery by a service. 1st., at 691. However, the answer "never arrived." 1st. "The first anyone knew of the problem was when plaintiffs garnisheed defendants bank account." Id. When an excusable mistake is not noticed and petitioners counsel acted properly to answer the complaint, petitioner should be allowed to have its day in court. Cunningham, 188 III.App.3d at 694-5. Requirement Number 3: Due Diligence in Filing the Petition to Vacate Courts have consistently held that in order for a judgment to be vacated, the party seeking relief must diligently pursue a petition to vacate. Smith v. Airoom, 1387. Due diligence requires that the petitioner have and present to the Court evidence by a preponderance of reasonable excuse(s) for failing to act within the appropriate time. Smith, 499 N.E.2d 198. Diligence requires that the petitioner possess "reasonable excuse" for failing to act within the appropriate time and that when he failed to object to the judgment, he acted reasonably and not negligently. Id. at 1387. Further, in order to grant a petition to vacate, the petitioner must prove that entry of the order was not known to the petitioner and could not have been discovered utilizing reasonable diligence. See Jusczyk v. Flores, 334 III. App. 3d 122, 128, 777 N.E.2d 454 (1st Dist. 2002). Numerous courts have held that a mere failure to receive notice of the order or judgment by the petitioner in the underlying case is not a circumstance sufficient to grant a Section 1401 petition to vacate. See, e.Q. Fiallo v. Lee, 205 WL 659122 (III. App. 1st Dist. 2005) (holding that plaintiffs sole excuse for not moving to vacate a default judgment sooner consisted of a lack of notice and that such claim did not amount to "evidence of her due diligence" since she failed to apprise herself of the status of the case; thus her petition to vacate should have been denied); Jusczyk v. Flores, 334 III. App. 3d 122, 777 N.E.2d 454 (1st Dist. 2002) (holding that two and a half-month delay in filing petition to vacate judgment on an arbitration award where defendant claimed he received notice of the arbitration hearing was not diligent); Gall v. Flash Cab Co., 100 III. App. 2d 64, 41 N.E.2d 673 (1st Dist. 1968). Notice of the Petition to OpposinQ Parties According to Section 1401, service of the petition to vacate must be had in accordance with Supreme Court Rule 106, which directs that service shall be given by the methods provided in Supreme Court Rule 105. Service must be had on the opposing party, and not her attorney in the underlying action, since that party may no longer be represented by the same attorney. Public Taxi Service, Inc. v. Ayrton, 15 III. App. 3d, 304 N.E.2d 733 (1st Dist. 1973). As such, service of the Section 1401 petition must be given by (1) summons to the person or member of household; (2) by prepaid certified or registered mail to the opposing party; or by publication with affidavit.8 Invalid notice results in a lack of jurisdiction, rendering subsequent orders invalid. Welfelt v. Schultz Transit Co., 144 III. App. 3d 767,772,494 N.E.2d 699 (1st Dist. 1986). An examination of Illinois case law reveals that there are two general exceptions to the service rule. First, a party waives the jurisdictional defect and is deemed to have entered a general appearance when she appears and argues the merits of the petition. Welfelt v. Schultz Transit Co., 144 III. App. 3d 767, 772, 494 N.E.2d 699 (1st Dist. 1986). The second, and more narrow exception, allows for service of the petition upon the partys attorney of record in the original proceeding where the attorney is representing the same party in court in a matter "ancillary to the original judgment." lQ.

Opposition to the Petition to Vacate In addition to the jurisdictional issues discussed above, the responding party may object to the substance of the Section 1401 petition to vacate. Initially, if the petition is insufficient in any way, the respondent must initially file a motion to strike the petition; otherwise, she waives the objection. Selvaggio v. Kickert School Bus Line, Inc., 46 III. App. 2d 398, 197 N.E.2d 128 (1st Dist. 1964). A Section 1401 petition is a new cause of action subject to civil practice rules, is considered in the same manner as a civil complaint, and is subject to dismissal if it "fails to state a cause of action or shows on its face that the petitioner is not entitled to relief." Ostendorf v. International Harvester Co., 433 N.E.2d 253 (1982). If the non-moving party responds to the allegations contained in the petition, an evidentiary hearing must be held where the petitioner must prove the factual allegations in her petition by a preponderance of the evidence, based upon all of the circumstances of the underlying case. .!s:L Vacating a DWP Order in a Re-Filed Case If a plaintiff is attempting to vacate a DWP order in a case that was previously voluntarily dismissed, the defendant may have a statute of limitations defense to the Section 1401 petition. In the event a lawsuit was previously dismissed pursuant to 735 ILCS 5/2-1009, the Illinois Code of Civil Procedure allows for re-filing of said action within one year from date of entry of said dismissal order (or within the remaining period of limitation). 735 ILCS 5/13-217. This statute affords, essentially, a one-time re-filing. After the second opportunity to file a lawsuit following a voluntary dismissal, a plaintiff cannot file any additional suits against the same defendant arising out of the same occurrence. Rodgers-Orduno v. Cecil-Genrer, 728 N.E.2d 62 (2d Dist. 2000). A petition to vacate pursuant to 735 ILCS 5/2-1401 "must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof." 735 ILCS 5/2-1401 (b) (emphasis added); Kulhavy v. Burlington Northern Santa Fe Railroad, 785 N.E.2d 928, 933 (1st Dist. 2003). As such, if a Section 1401 petition to vacate is filed after expiration of the statute of limitations, the petition should be denied. Kulhavyat 394 (involving a FELA statute of limitations). In Kulhavy, plaintiff filed his Section 1401 petition nine months after expiration of the applicable statute of limitations. Plaintiff claimed that he never received notice of the Court date which plaintiff did not attend and when plaintiffs case was dismissed for want of prosecution. In denying plaintiffs petition to vacate, the First District held that a Section 1401 petition is considered a "new action" and not a continuation of the underlying case; since the federal statute of limitations for plaintiffs claims had expired prior to plaintiff filing his "new action", plaintiff was not entitled to relief. Id. Although Kulhavy involved a federal statute that essentially pre-empted the one year re-filing rule and potential tolling of the statute of limitations following a notice of voluntary dismissal, this case provides practitioners with a stern warning that diligent prosecution of a case could prove fatal in a future Section 1401 petition to vacate. For example, a plaintiff is injured on January 1, 2002; the statute of limitations for a bodily injury is two years (January 1, 2004). Suit is timely filed on June 1, 2003, but is voluntarily dismissed 18 months from the date of filing on December 1, 2004 (thus allowing for re-filing of the lawsuit within one year and tolling the statute of limitations from January 1, 2004 to December 1, 2005). Plaintiff waits until 11 months following the voluntary dismissal to file a new suit on November 1, 2005. That suit is dismissed for want of prosecution two months later on January 1, 2006. Plaintiff files her Section 1401 petition 60 days later on March 1, 2006. Since the filing of the petition (March 1, 2006) is a "new action", the filing occurs after expiration of the statute of limitations (December 1, 2005) and should be dismissed with prejudice pursuant to Kulhavy. The Underlying Case

The appellate courts for almost 30 years have held that a Section 72 petition [now Section 1401] is to determine the propriety of vacating the prior judgment and is not concerned with litigating the merits of the underlying complaint. See Ruben H. Donnelley Corp. v. Thomas, 79 III.App.3d 729, 730 (1 st Dist. 1979). The Thomas court clearly held that it is improper to argue the ultimate facts relating to a defense, or to refute a defendants ultimate success in order to oppose vacating a default. Id. As the court stated, it "is not the trial courts responsibility to determine the merits of the underlying cause of action." Id. This rule of law has been steadfastly followed for decades. See, Cunningham v. Millers General Ins. Co., 188 IILAp.3d 689, 693 (4th Dist. 1989) (affirming vacated judgment and holding "conflict of facts goes to merits ... It does not affect whether there is the existence of a meritorious defense"); Halle v. Robertson, 219 IILApp.3d 564, 569-70 (2nd Dist. 1991) (affirming vacated judgment and holding 1401 petition does not "determine the ultimate outcome of the proceeding"); Smith v. Cole, 256 IILApp.3d 806, 811-12 (1st Dist. 1992) (affirming vacated judgment and holding plaintiffs "counter-affidavits disputing the factual basis of the claim defense" were improper); Pirman v. A&M Cartage, Inc., 285 IILApp.3d 993, 1001-04 (1st Dist. 1996) (affirming vacated judgment and holding plaintiffs counter-affidavits could not refute 1401 petition and defenses and were not preemptive). However, if the petitioner was dilatory in prosecuting or defending the underlying case(s), then respondent must bring these "additional facts" to the attention to the Court to defeat the petition. Conclusion The general rule is that Section 1401 petitions for relief must affirmatively set forth specific factual allegations supporting each of the following elements: 1 The existence of a meritorious defense or claim; 2 Due diligence in presenting this defense or claim to Circuit Court in the original action; and 3 Due diligence in filing the Section 1401 petition. In opposing such a petition, a practitioner must be mindful to not waive a clients rights by submitting to the jurisdiction of the court and/or failing to preserve her clients right to substantively object to the petition in writing and at hearing by first moving to strike the petition. While there is no bright line for judging due diligence, attorneys are urged to monitor the progress of their cases to avoid the effort associated with seeking relief from a final order or judgment.
1 735 ILCS 5/2-1301(e) 2 Id. 3 735 ILCS 5/2-1301(f) 4 735 ILCS 5/2-1401(c) 5 735 ILCS 5/2-1401(b) 6 735 ILCS 5/2-1401(a) 7 Service is not complete until the notice and petition are received by the opposing party and the registry receipt serves as prima facie evidence thereof. S.C.R. 1 05(b). 8 S.C.R. 1 05(b)

During argument of the plaintiff's section 2-615 motions to dismiss the banks' respective amended petitions to vacate the $800,000 defaults, Judge Varga commented: "You need a wherefore clause to say who you want to collect against. You didn't do it. It is not there * * *. So that judgment is void as to these two defendants. It's simple, it's clear, and it's black and white to me ***. They were never notified, told that a dime was going to come from them ***. If you want to tag some[one] for dollars, you have to put the person or entity's name in the wherefore clause."
A "Counterclaim" is a lawsuit brought by the defendant against the plaintiff. By filing a counterclaim, the defendant seeks to change the direction of the lawsuit by claiming that it was the plaintiff -- not the defendant -- who did something wrong and that as a result it is the defendant who should get money damages. A defendant may file a Counterclaim against a plaintiff or against a co-defendant. It should be noted however, that a Counterclaim should arise out of the same set of facts as those in the complaint. For example, where Pat sues Dave for damages arising out of a car crash between Pat and Dave, it would be proper for Dave to file a Counterclaim against Pat if he believed she did damage to his car. However, it would not be appropriate for Dave to file a Counterclaim against Pat alleging that in an unrelated transaction, he lent Pat a television which she never returned. In the latter example, Dave would have to file a separate case. The fee for filing a Counterclaim is the same as the filing fee for a new case. The original Counterclaim must be filed with the Office of the Circuit Clerk. The party filing the Counterclaim must either present a copy of the Counterclaim to every party in the case on the return date of the Summons or send a copy of the Counterclaim to every party in the case by first class mail. A "Third Party Complaint" is filed by a defendant when it is believed that someone else is liable in whole or part to the plaintiff. For example, where Pat sues Dave for damages arising out of a car accident between Dave and Pat's cars, if Dave's friend Tom was driving Dave's car, Dave may wish to bring Tom into the lawsuit. In order to bring a third party into the lawsuit, the defendant must file a Third Party Complaint and Summons. The defendant would follow the same procedure for filing the Complaint and have the third party defendant served as in a new case. The defendant must send a copy of the Third Party Complaint and Summons to the plaintiff, and have the third party defendant (Tom in the example above) served by the Sheriff, licensed private detective, or private process server. A defendant desiring to file a Third Party Complaint must file a Motion with the Court requesting leave to file the Third Party Complaint. Notice and a copy of the Motion must be mailed to the parties of record along with a copy of the Third Party Complaint.

Use this At A Glance Guide to learn the statewide rules of civil procedure (Illinois Compiled Statutes and Illinois Supreme Court Rules) applicable to counterclaims in Illinois Circuit Court. For a more detailed treatment, including local rules and general pleading rules, please see the Illinois Circuit Court SmartRules Guide: Counterclaim. Deadlines: The counterclaim must be made as part of the answer. 735 ILCS 5/2-608(b). In actions where a specific appearance date is not required by statute, local rule or Supreme Court rule, the summons should require each defendant to file his answer/counterclaim or otherwise appear in the action within 30 days. IL Supreme Court R. 101(d). The Illinois courts are liberal in exercising the discretion granted them to extend the time to answer or otherwise plead for good cause shown. Such extensions may be granted to allow for the filing of motions for involuntary dismissal, motions to transfer, requests for more particular statement, or otherwise. IL Supreme Court R. 183. A party who appears in an action without having been served with a summons is required to plead within the same time as if the summons had been served on the appearance date. IL Supreme Court R. 13(b).

Answers by parties already before the court to counterclaims must be filed within twenty-one (21) days after the last day for filing the counterclaim. IL Supreme Court R. 182(b). An answer to a counterclaim and pleadings subsequent thereto must be filed as in the case of a complaint and with like designation and effect. 735 ILCS 5/2-608(d). Illinois Counterclaim Rules: Under the Illinois rules, the term counterclaim includes any claim brought by one or more defendants against one or more plaintiffs, or against one or more codefendants. 735 ILCS 5/2-608(a). While the Federal Rules reserve the term counterclaim for a claim brought against a plaintiff, and use the term cross-claim to refer to a claim brought against a codefendant, the Illinois rules use the term counterclaim to refer to both types of claims. There is no compulsory counterclaim rule in Illinois. In contrast to the Federal Rules, the Illinois rules provide only for permissive counterclaims. See 735 ILCS 5/2-608(a). Any claim by one or more defendants against one or more plaintiffs or against one or more co-defendants, whether in the nature of setoff, recoupment, cross claim, or otherwise, and whether in tort or contract, or for liquidated or un-liquidated damages, or any other relief, may be brought as a counterclaim. 735 ILCS 5/2-608(a). Counterclaims must be pled in the same manner and with the same particularity as the complaint and other pleadings. The counterclaim must be complete in itself, but may incorporate by specific reference allegations set forth in the answer. 735 ILCS 5/2608(c). A counterclaim must be designated as a counterclaim. 735 ILCS 5/2-608(b). The plaintiff may at any time before trial or hearing begins, upon notice to each party who has appeared or each such partys attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. 735 ILCS 5/2-1009(a). Such a voluntary dismissal does not dismiss a pending counterclaim or third party complaint. 735 ILCS 5/2-1009(d). The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

(735 ILCS 5/2-608) (from Ch. 110, par. 2-608) Sec. 2-608. Counterclaims. (a) Any claim by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross claim in any action, and when so pleaded shall be called a counterclaim. (b) The counterclaim shall be a part of the answer, and shall be designated as a counterclaim. Service of process on parties already before the court is not necessary. (c) Every counterclaim shall be pleaded in the same manner and with the same particularity as a complaint, and shall be complete in itself, but allegations set forth in other parts of the answer may be incorporated by specific reference instead of being repeated. (d) An answer to a counterclaim and pleadings subsequent thereto shall be filed as in the case of a complaint and with like designation and effect. (Source: P.A. 82-280.)

F. MOTION TO CONSOLIDATE OR SEVER CLAIMS Consolidation or severance of cases may be allowed whenever it can be done without prejudice to a substantial right. 735 ILCS 5/2-1006. The trial court has discretion to sever the issues where the substantial rights of litigants may be prejudiced during the course of the trial. Mount v. Dusing, 414 Ill. 361, 367 (1953). Or, the trial court may sever issues for purposes of administrative convenience. Id. Consolidation serves to expedite the resolution of lawsuits, conserve the court's time, avoid duplicating efforts, and save unnecessary expenses. J.S.A. v. M.H., 384 Ill. App. 3d 998, 1004-1005 (3d Dist. 2008) (citing Peck v. Peck, 16 Ill. 2d 268, 276 (1959)). Consolidation may be proper where cases are the same in nature, arise from the same acts, involve the same issues, and depend on the same evidence. Id. (citing La Salle Natl Bank v. Helry Corp., 136 Ill. App. 3d 897, 905 (1st Dist. 1985)).

On April 10, 2008, RBM filed a motion to vacate the default judgment and for leave to intervene and file a counterclaim instanter. A copy of RBMs proposed counterclaim was attached to the motion. In the answer and counterclaim attached to the motion, RBM alleged it provided materials, equipment, services and labor in the amount of $428,500 to the owners of the Lincolnwood property. RBM completed the work under the contract on June 14, 2006, and subsequently recorded a mechanics lien on the property for unpaid work. RBM claimed its lien is prior and superior to the mortgage owed to BONY.

ILLINOIS OFFICIAL REPORTS

Appellate Court
Bank of New York v. Jurado, 2012 IL App (1st) 112116 Appellate Court Caption BANK OF NEW YORK, as Trustee for the Certificate Holders CWABS, Inc., Asset-backed Certificates, Series 2004-6, Plaintiff-Appellee, v. NANCY R. JURADO; REYNALDO JURADO; CITIZENS BANK ILLINOIS, N.A.; and LASALLE BANK, N.A.; Defendants (RBM Development, Inc., Defendant-Appellant). District & No. First District, Fifth Division Docket No. 1-11-2116 Filed September 21, 2012 Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)

The counterclaim defendant filed in a foreclosure action seeking to enforce the mechanics lien defendant had on the subject property was barred as untimely pursuant to the two-year limitations period in section 9 of the Mechanics Lien Act. Decision Under Review Appeal from the Circuit Court of Cook County, No. 07-CH-04019; the Hon. Lisa R. Curcio, Judge, presiding. Judgment Affirmed. Counsel on Appeal Leon Zelechowski, of Leon Zelechowski, Ltd., of Chicago, for appellant. John D. Burke, David J. Chroust, and Douglas Henning, all of Ice Miller LLP, of Chicago, and Joseph Herbas, of Fisher Shapiro LLC, of Bannockburn, for appellee. Panel JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Epstein concurred in the judgment and opinion. OPINION 1 Defendant RBM Development, Inc., appeals from a circuit court order holding that RBMs counterclaim to enforce a mechanics lien was time barred. For the reasons set forth below, we affirm the decision of the circuit court. 2 BACKGROUND 3 Plaintiff Bank of New York (BONY) filed a complaint on February 13, 2007, in the circuit court of Cook County to foreclose on a mortgage for property located on Kenton

Avenue in Lincolnwood. 4 In its complaint, BONY named RBM Development, Inc. (RBM), as a defendant, among others, by virtue of RBMs mechanics lien on the property, recorded on October 12, 2006. BONY served its lawsuit upon Frederick W. Calcutt in Chicago, RBMs registered agent listed in the records of the Illinois Secretary of State. 5 BONY filed a motion for an order of default against RBM and other defendants on July 16, 2007. BONY stated it served RBM on February 21, 2007, and RBM failed to appear or answer. On the same day, the trial court issued an order finding RBM and the other defendants in default and entered an order for judgment of foreclosure and sale. 6 On April 10, 2008, RBM filed a motion to vacate the default judgment and for leave to intervene and file a counterclaim instanter. A copy of RBMs proposed counterclaim was attached to the motion. In the answer and counterclaim attached to the motion, RBM alleged it provided materials, equipment, services and labor in the amount of $428,500 to the owners of the Lincolnwood property. RBM completed the work under the contract on June 14, 2006, and subsequently recorded a mechanics lien on the property for unpaid work. RBM claimed its lien is prior and superior to the mortgage owed to BONY. 7 In an order dated June 12, 2008, the trial court set the motion for an evidentiary hearing on August 4, 2008, and allowed the parties to pursue limited discovery. 8 On August 4, 2008, the trial court entered an order finding Calcutt did not have authority to serve as RBMs registered agent and therefore the court vacated the default judgment of -2foreclosure as to RBM. The trial court gave RBM leave to file its answer and counterclaim by August 25, 2008. 9 RBM filed the answer and counterclaim on August 25, 2008. BONY filed a motion for summary judgment, pursuant to section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2008)), on January 13, 2010. BONY alleged RBM failed to enforce its mechanics lien within two years of completion of the work as required under section 9 of the Illinois Mechanics Lien Act (Act) (770 ILCS 60/9 (West 2008)). Since RBMs work was completed June 14, 2006, BONY claimed the deadline under the Act for RBM to foreclose on its mechanics lien was June 14, 2008. BONY argued RBMs counterclaim was filed on August 25, 2008, after the deadline required by the Act, and is, therefore, unenforceable. 10 Section 9 of the Act provides, in part: If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien in the circuit court in the county where the improvement is located ***. *** [A]ll lien claimants not made parties thereto may upon filing a petition to intervene become defendants and enforce their liens by counterclaim against all the parties to the suit; and the complaint shall not thereafter be dismissed as to any lien claimant, or as to the owner or owners of the premises without the consent of such lien claimant. *** Such suit shall be commenced or counterclaim filed within two years after the completion of the contract ***. 770 ILCS 60/9 (West 2008). 11 In its response to BONYs motion for summary judgment, RBM claimed it should not be penalized for its failure to meet the two-year deadline because: (1) RBM set forth its mechanics lien claim in the motion for leave to file on April 10, 2008, two months before the two-year limitations period expired, but the trial court did not grant it leave to file its counterclaim within the two-year period because of its busy calendar; (2) BONYs act of

contesting RBMs motion to vacate the default judgment caused a delay; and (3) BONYs service on Calcutt caused a delay. 12 In an order dated August 13, 2010, the trial court granted BONYs motion for summary judgment, finding RBM did not file a complaint to foreclose its mechanics lien in the time required by the Act. The trial court stated: RBM correctly moved to vacate the default against it in the mortgage foreclosure in order to avoid foreclosure of any rights it had to the property. This was insufficient, however, to allow it to enforce its mechanics lien. No rule of law precluded RBM from filing its own complaint at any time within the two year period following completion of its work. Not having done so, and not having filed its counterclaim in the pending mortgage foreclosure lawsuit, RBM has forfeited its right to enforce its mechanics lien. 13 RBM filed this timely appeal of the trial courts order granting BONYs motion for summary judgment. 14 ANALYSIS 15 On appeal, RBM claims that the counterclaim attached to its motion to vacate BONYs -3default judgment was filed before the two-year deadline required by section 9 of the Act (770 ILCS 60/9 (West 2008)). RBM argues the counterclaim attached to a motion to vacate and request for leave to file a counterclaim satisfied the two-year filing requirement of section 9 of the Act. RBM alleges the existence of the default foreclosure judgment against RBM placed it in the untenable situation where it had to get leave of court before filing the counterclaim and, therefore, the summary judgment for BONY should be reversed. 16 Summary judgment is proper if, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). Our review of the trial courts grant of summary judgment is de novo. Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). 17 The issue before us is one of statutory construction. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). The language of a statute is the best means of determining legislative intent, and where the statutory language is clear and unambiguous, its plain meaning will be given effect. People v. Ramirez, 214 Ill. 2d 176, 179 (2005). We do not construe words and phrases of a statute in isolation; instead, all provisions of a statute are viewed as a whole. In re Donald A.G., 221 Ill. 2d at 246. The construction of a statute is reviewed de novo. People v. Delvillar, 235 Ill. 2d 507, 517 (2009). 18 In support of the claim that it complied with section 9 of the Act, RBM cites Wasilevich Construction Co. v. La Salle National Bank, 222 Ill. App. 3d 927 (1991). In Wasilevich, subcontractor Lyons filed a mechanics lien for work on a construction project it had completed on October 4, 1988. Wasilevich, 222 Ill. App. 3d at 929. Shortly thereafter, Wasilevich filed a complaint for foreclosure of its own mechanics lien on the construction project. However, Wasilevich omitted Lyons as a party-defendant. 19 On October 3, 1990, one day prior to the expiration of the two-year limitations period for perfecting Lyons mechanics lien, Lyons filed a petition for leave to intervene and also filed a counterclaim to enforce his mechanics lien. Section 9 provided that nonparty lien

claimants may upon filing a petition to intervene become defendants and enforce their liens by counterclaim. (Internal quotation marks omitted.) Id. at 931. The hearing on Lyons petition to intervene did not occur until October 25, 1990, three weeks after the two-year limitation period expired. Id. The trial court denied Lyons petition as untimely. Id. 20 The appellate court reversed the trial court, finding that Lyons intervention petition was indeed timely. The court noted that the issue in Wasilevich was not whether the counterclaim was timely filedthe parties agreed that the counterclaim to enforce the mechanics lien was actually filed on October 3, 1988, one day prior to the expiration of the two-year limitations period. The issue before the Wasilevich court was whether a mechanics lien intervenor-claimant satisfied the two-year limitation requirements of section 9 when it filed a petition for leave to intervene within two years but leave to file was not granted until after the two-year period elapsed. 21 The court determined that the plain language of the Act did not require leave to intervene -4be granted within two years as long as the petition to intervene was filed within two years of the completion of the work. Id. at 931-32. Because the parties agreed the counterclaim was filed within two years, Lyons action of filing the petition to intervene one day prior to the deadline fits within the plain language of the Act. Id. 22 Here, unlike Wasilevich, there is no agreement that RBMs counterclaim was filed within two years. Both parties agree that RBMs counterclaim was not filed until August 25, 2008, which was after the two-year limitations period expired. We note the motion to vacate and motion for leave in the record was file-stamped on April 10, 2008. However, the attached counterclaim is not file-stamped. The Wasilevich court did not hold that a counterclaim attached to a motion to vacate a default order is equivalent to a filing, because the court acknowledged that the counterclaim there was actually filed prior to the expiration of the limitations period, unlike the circumstances presented in this case. 23 Next, RBM claims that BONYs opposition to its motion to vacate, combined with the trial courts busy docket, resulted in the court delaying the hearing to a date past the two-year deadline. However, we cannot say BONY violated any law or rule of procedure in opposing RBMs motion to vacate. Additionally, there is no indication in the record that after RBM filed its motion to vacate on April 10, 2008, that RBM ever informed the trial court that its two-year deadline was approaching on June 14, 2008 or that an expedited hearing was needed. RBM claims that its only course of action once it learned of BONYs default judgment was to file a motion to vacate. 24 We agree that RBM took a proper course of action when it filed the motion to vacate the default judgment to protect its rights. However, we are not persuaded that this was the only course of action available. We recognize that the original judgment of foreclosure purported to extinguish RBMs lien. However, RBM had reason to believe the judgment was void, and the trial court eventually determined that to be the case. RBM could have filed its own case to foreclose the lien before the time elapsed because a void judgment could be attacked directly or collaterally. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002). The two cases could have been consolidated so there would be no duplication. 25 Section 9 of the Act provides that the counterclaim must be filed within two years of the completion of the work, not merely presented as an attachment. The arguments and authority presented by RBM to support its position in the trial court and on appeal are not persuasive. Accordingly, the judgment of the circuit court is affirmed.

 26 CONCLUSION 27 For the foregoing reasons, we affirm the judgment of the trial court. 28 Affirmed. -5-

ILLINOIS OFFICIAL REPORTS

Appellate Court
Bank of New York v. Jurado, 2012 IL App (1st) 112116 Appellate Court Caption BANK OF NEW YORK, as Trustee for the Certificate Holders CWABS, Inc., Asset-backed Certificates, Series 2004-6, Plaintiff-Appellee, v. NANCY R. JURADO; REYNALDO JURADO; CITIZENS BANK ILLINOIS, N.A.; and LASALLE BANK, N.A.; Defendants (RBM Development, Inc., Defendant-Appellant). District & No. First District, Fifth Division Docket No. 1-11-2116 Filed September 21, 2012 Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)

The counterclaim defendant filed in a foreclosure action seeking to enforce the mechanics lien defendant had on the subject property was barred as untimely pursuant to the two-year limitations period in section 9 of the Mechanics Lien Act. Decision Under Review Appeal from the Circuit Court of Cook County, No. 07-CH-04019; the Hon. Lisa R. Curcio, Judge, presiding. Judgment Affirmed. Counsel on Appeal Leon Zelechowski, of Leon Zelechowski, Ltd., of Chicago, for appellant. John D. Burke, David J. Chroust, and Douglas Henning, all of Ice Miller LLP, of Chicago, and Joseph Herbas, of Fisher Shapiro LLC, of Bannockburn, for appellee. Panel JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Epstein concurred in the judgment and opinion.

OPINION 1 Defendant RBM Development, Inc., appeals from a circuit court order holding that RBMs counterclaim to enforce a mechanics lien was time barred. For the reasons set forth below, we affirm the decision of the circuit court. 2 BACKGROUND 3 Plaintiff Bank of New York (BONY) filed a complaint on February 13, 2007, in the circuit court of Cook County to foreclose on a mortgage for property located on Kenton Avenue in Lincolnwood. 4 In its complaint, BONY named RBM Development, Inc. (RBM), as a defendant, among others, by virtue of RBMs mechanics lien on the property, recorded on October 12, 2006. BONY served its lawsuit upon Frederick W. Calcutt in Chicago, RBMs registered agent listed in the records of the Illinois Secretary of State. 5 BONY filed a motion for an order of default against RBM and other defendants on July 16, 2007. BONY stated it served RBM on February 21, 2007, and RBM failed to appear or answer. On the same day, the trial court issued an order finding RBM and the other defendants in default and entered an order for judgment of foreclosure and sale. 6 On April 10, 2008, RBM filed a motion to vacate the default judgment and for leave to intervene and file a counterclaim instanter. A copy of RBMs proposed counterclaim was attached to the motion. In the answer and counterclaim attached to the motion, RBM alleged it provided materials, equipment, services and labor in the amount of $428,500 to the owners of the Lincolnwood property. RBM completed the work under the contract on June 14, 2006, and subsequently recorded a mechanics lien on the property for unpaid work. RBM claimed its lien is prior and superior to the mortgage owed to BONY. 7 In an order dated June 12, 2008, the trial court set the motion for an evidentiary hearing on August 4, 2008, and allowed the parties to pursue limited discovery. 8 On August 4, 2008, the trial court entered an order finding Calcutt did not have authority to serve as RBMs registered agent and therefore the court vacated the default judgment of -2foreclosure as to RBM. The trial court gave RBM leave to file its answer and counterclaim by August 25, 2008. 9 RBM filed the answer and counterclaim on August 25, 2008. BONY filed a motion for summary judgment, pursuant to section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2008)), on January 13, 2010. BONY alleged RBM failed to enforce its mechanics lien within two years of completion of the work as required under section 9 of the Illinois Mechanics Lien Act (Act) (770 ILCS 60/9 (West 2008)). Since RBMs work was completed June 14, 2006, BONY claimed the deadline under the Act for RBM to foreclose on its mechanics lien was June 14, 2008. BONY argued RBMs counterclaim was filed on August 25, 2008, after the deadline required by the Act, and is, therefore, unenforceable. 10 Section 9 of the Act provides, in part: If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien in the circuit court in the county where the improvement is located ***. *** [A]ll lien claimants not made parties thereto may upon filing a petition to intervene become defendants and enforce their liens by counterclaim against all the parties to the suit; and the complaint shall not thereafter be dismissed as to any lien claimant, or as to the owner or owners of the premises without the consent of such lien claimant. *** Such suit shall

be commenced or counterclaim filed within two years after the completion of the contract ***. 770 ILCS 60/9 (West 2008). 11 In its response to BONYs motion for summary judgment, RBM claimed it should not be penalized for its failure to meet the two-year deadline because: (1) RBM set forth its mechanics lien claim in the motion for leave to file on April 10, 2008, two months before the two-year limitations period expired, but the trial court did not grant it leave to file its counterclaim within the two-year period because of its busy calendar; (2) BONYs act of contesting RBMs motion to vacate the default judgment caused a delay; and (3) BONYs service on Calcutt caused a delay. 12 In an order dated August 13, 2010, the trial court granted BONYs motion for summary judgment, finding RBM did not file a complaint to foreclose its mechanics lien in the time required by the Act. The trial court stated: RBM correctly moved to vacate the default against it in the mortgage foreclosure in order to avoid foreclosure of any rights it had to the property. This was insufficient, however, to allow it to enforce its mechanics lien. No rule of law precluded RBM from filing its own complaint at any time within the two year period following completion of its work. Not having done so, and not having filed its counterclaim in the pending mortgage foreclosure lawsuit, RBM has forfeited its right to enforce its mechanics lien. 13 RBM filed this timely appeal of the trial courts order granting BONYs motion for summary judgment. 14 ANALYSIS 15 On appeal, RBM claims that the counterclaim attached to its motion to vacate BONYs -3default judgment was filed before the two-year deadline required by section 9 of the Act (770 ILCS 60/9 (West 2008)). RBM argues the counterclaim attached to a motion to vacate and request for leave to file a counterclaim satisfied the two-year filing requirement of section 9 of the Act. RBM alleges the existence of the default foreclosure judgment against RBM placed it in the untenable situation where it had to get leave of court before filing the counterclaim and, therefore, the summary judgment for BONY should be reversed. 16 Summary judgment is proper if, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). Our review of the trial courts grant of summary judgment is de novo. Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). 17 The issue before us is one of statutory construction. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). The language of a statute is the best means of determining legislative intent, and where the statutory language is clear and unambiguous, its plain meaning will be given effect. People v. Ramirez, 214 Ill. 2d 176, 179 (2005). We do not construe words and phrases of a statute in isolation; instead, all provisions of a statute are viewed as a whole. In re Donald A.G., 221 Ill. 2d at 246. The construction of a statute is reviewed de novo. People v. Delvillar, 235 Ill. 2d 507, 517 (2009). 18 In support of the claim that it complied with section 9 of the Act, RBM cites Wasilevich Construction Co. v. La Salle National Bank, 222 Ill. App. 3d 927 (1991). In Wasilevich, subcontractor

Lyons filed a mechanics lien for work on a construction project it had completed on October 4, 1988. Wasilevich, 222 Ill. App. 3d at 929. Shortly thereafter, Wasilevich filed a complaint for foreclosure of its own mechanics lien on the construction project. However, Wasilevich omitted Lyons as a party-defendant. 19 On October 3, 1990, one day prior to the expiration of the two-year limitations period for perfecting Lyons mechanics lien, Lyons filed a petition for leave to intervene and also filed a counterclaim to enforce his mechanics lien. Section 9 provided that nonparty lien claimants may upon filing a petition to intervene become defendants and enforce their liens by counterclaim. (Internal quotation marks omitted.) Id. at 931. The hearing on Lyons petition to intervene did not occur until October 25, 1990, three weeks after the two-year limitation period expired. Id. The trial court denied Lyons petition as untimely. Id. 20 The appellate court reversed the trial court, finding that Lyons intervention petition was indeed timely. The court noted that the issue in Wasilevich was not whether the counterclaim was timely filedthe parties agreed that the counterclaim to enforce the mechanics lien was actually filed on October 3, 1988, one day prior to the expiration of the two-year limitations period. The issue before the Wasilevich court was whether a mechanics lien intervenor-claimant satisfied the two-year limitation requirements of section 9 when it filed a petition for leave to intervene within two years but leave to file was not granted until after the two-year period elapsed. 21 The court determined that the plain language of the Act did not require leave to intervene -4be granted within two years as long as the petition to intervene was filed within two years of the completion of the work. Id. at 931-32. Because the parties agreed the counterclaim was filed within two years, Lyons action of filing the petition to intervene one day prior to the deadline fits within the plain language of the Act. Id. 22 Here, unlike Wasilevich, there is no agreement that RBMs counterclaim was filed within two years. Both parties agree that RBMs counterclaim was not filed until August 25, 2008, which was after the two-year limitations period expired. We note the motion to vacate and motion for leave in the record was file-stamped on April 10, 2008. However, the attached counterclaim is not file-stamped. The Wasilevich court did not hold that a counterclaim attached to a motion to vacate a default order is equivalent to a filing, because the court acknowledged that the counterclaim there was actually filed prior to the expiration of the limitations period, unlike the circumstances presented in this case. 23 Next, RBM claims that BONYs opposition to its motion to vacate, combined with the trial courts busy docket, resulted in the court delaying the hearing to a date past the two-year deadline. However, we cannot say BONY violated any law or rule of procedure in opposing RBMs motion to vacate. Additionally, there is no indication in the record that after RBM filed its motion to vacate on April 10, 2008, that RBM ever informed the trial court that its two-year deadline was approaching on June 14, 2008 or that an expedited hearing was needed. RBM claims that its only course of action once it learned of BONYs default judgment was to file a motion to vacate. 24 We agree that RBM took a proper course of action when it filed the motion to vacate the default judgment to protect its rights. However, we are not persuaded that this was the only course of action available. We recognize that the original judgment of foreclosure purported to extinguish RBMs lien. However, RBM had reason to believe the judgment was void, and the trial court eventually determined that to be the case. RBM could have filed its own case

to foreclose the lien before the time elapsed because a void judgment could be attacked directly or collaterally. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002). The two cases could have been consolidated so there would be no duplication. 25 Section 9 of the Act provides that the counterclaim must be filed within two years of the completion of the work, not merely presented as an attachment. The arguments and authority presented by RBM to support its position in the trial court and on appeal are not persuasive. Accordingly, the judgment of the circuit court is affirmed. 26 CONCLUSION 27 For the foregoing reasons, we affirm the judgment of the trial court. 28 Affirmed. -5-

Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002). The two cases could have been consolidated so there would be no duplication.