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Bank of New York, As Trustee For the v. Nancy R. Jurado; Reynaldo Jurado; Citizens Bank Illinois

September 21, 2012

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.



Appeal from the Circuit Court of Cook County. No. 07 CH 04019 Honorable Lisa R. Curcio, Judge Presiding.

The opinion of the court was delivered by: Justice Howse

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 RBM's counterclaim to enforce a mechanic's 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 RBM's mechanic's lien on the property, recorded on October 12, 2006. BONY served its lawsuit upon Frederick W. Calcutt in Chicago, RBM's 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 RBM's 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 mechanic's 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 RBM's registered agent and therefore the court vacated the default judgment of foreclosure as to RBM. The trial court gave RBM leave to file its answer and counterclaim by August 25, 2008.

ΒΆ 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 mechanic's 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 RBM's work was completed June 14, 2006, BONY claimed the deadline under the Act for RBM to foreclose on its mechanic's lien was June ...


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