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05/24/88 R. W. Boeker Company, Inc. v. Eagle Bank of Madison

May 24, 1988

R. W. BOEKER COMPANY, INC., PLAINTIFF-APPELLANT

v.

EAGLE BANK OF MADISON COUNTY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 146, 170 Ill. App. 3d 693, 121 Ill. Dec. 340 1988.IL.811

Appeal from the Circuit Court of Madison County; the Hon. Lola P. Maddox, Judge, presiding.

APPELLATE Judges:

JUSTICE KARNS delivered the opinion of the court. WELCH and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Plaintiff, R. W. Boeker Co., appeals from an order of the circuit court of Madison County dismissing its cause of action to foreclose a mechanic's lien on the grounds it was barred by a prior mortgage foreclosure proceeding. We affirm.

Cottonwood Sports Center, a sports facility in Edwardsville, formerly was owned by Cottonwood Junction, Inc. In November of 1983, Cottonwood Junction filed a bankruptcy petition in Federal court. The second mortgage holder, the Helsels, and the first mortgage holder, Eagle Bank of Madison County (Eagle Bank), defendant here, had the bankruptcy court's automatic stay lifted with respect to the sports facility land. In February 1985, the Helsels and Eagle Bank filed a complaint to foreclose their mortgages. A lis pendens notice of the pending foreclosure proceeding was recorded, and "unknown owners" of the land were served.

In May of 1985, Cottonwood Junction, Inc., persuaded R. W. Boeker Co. to furnish labor and materials necessary to improve the sports facility. Plaintiff worked on the facility from May through November 1985 and furnished approximately $160,342 in materials and labor.

On November 21, 1985, the mortgage foreclosure proceeding went to trial. Plaintiff recorded its claim for a mechanic's lien on March 18, 1986. A judgment of foreclosure was entered in the mortgage foreclosure proceeding on March 20, 1986, and the foreclosure sale was held on April 21, 1986. Although the Helsels were the highest bidders at the sale, they were not able to raise the funds to meet the bid. Eagle Bank, as second highest bidder, purchased the land. The circuit court of Madison County issued a certificate of sale which Eagle Bank recorded on April 29, 1986. The judicial deed to the land was issued on October 22, 1986.

Plaintiff filed its complaint to foreclose its mechanic's lien on November 5, 1986, against Eagle Bank. Eagle Bank filed a motion to dismiss plaintiff's complaint on the ground that it failed to state a cause of action. Plaintiff's owner filed an affidavit in response which stated:

"1. R. W. BOEKER COMPANY had a trailer on the job site of this property at all times that the company was doing improvements. The job lasted from approximately May 1985 until November of 1985. The trailer had in bold letters the following:

R. W. BOEKER COMPANY, INC.

GENERAL CONTRACTORS

The job site is approximately three and a half blocks away from Eagle Bank on the same side of Illinois Highway 159 in Edwardsville, Illinois. The trailer was parked in the ...


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