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Pnc Bank, National Association v. 35th

December 18, 2012

PNC BANK, NATIONAL ASSOCIATION
v.
35TH & MORGAN, ET AL.



Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons stated below, PNC Bank's motions to dismiss counter-claims by Dubin and Associates [26] and by Hartshorne Plunkard [59] are denied.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

I. Background

On December 29, 2011, Plaintiff/Counter-Defendant PNC Bank ("PNC Bank") filed a mortgage foreclosure action against Defendant 35th & Morgan, the owner of real estate at 1008-1042 West 35th Street ("the Premises"), and two entities that recorded mechanic's liens against the Premises, Defendants Dubin and Associates, Inc. and Hartshorne Plunkard Ltd. ("Defendants/Counter-Plaintiffs" or "Counter-Plaintiffs"). On February 22, 2012, Dubin and Associates answered PNC Bank's complaint and filed a counter-claim [12] against it and the other parties seeking to foreclose the mechanic's lien it filed against the Premises and recorded on March 21, 2011. On May 17, 2012, Hartstone Plunkard answered Plaintiff's complaint and filed a counter-claim [57] against the parties seeking to foreclose the mechanic's lien it filed against the Premises and recorded on April 25, 2011. Counter-Plaintiffs bring their claims under Illinois's Mechanics Lien Act, 770 ILCS 60.01, et seq. Before the Court are PNC Bank's motions to dismiss [26, 59].

II. Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole."). The same legal standard applies to counter-claims. See Guarantee Trust Life Ins. v. Insurers Administrative Corp., 2010 WL 3834026, at * 1 (N.D. Ill. Sept. 24, 2010).

III. Analysis

In relevant part, § 7 of Illinois's Mechanic's Lien Act provides that No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within 4 months after completion, or if extra or additional work is done or labor, services, material, fixtures, apparatus or machinery, forms or form work is delivered therefor within 4 months after the completion of such extra or additional work or the final delivery of such extra or additional labor, services, material, fixtures, apparatus or machinery, forms or form work, he or she shall either bring an action to enforce his or her lien therefor or shall file in the office of the recorder of the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for lien, verified by the affidavit of himself or herself, or his or her agent or employee, which shall consist of a brief statement of the claimant's contract, the balance due after allowing all credits, and a sufficiently correct description of the lot, lots or tracts of land to identify the same. * * * No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefor under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud * * * .

770 ILCS 60/7. In other words, § 7 "instructs only that a claim for lien: (1) be filed within four months after the completion of work; (2) be verified by affidavit of the claimant or agent or employee; (3) contain a brief statement of the contract, (4) set forth the balance due; and (5) provide a sufficiently correct description of the lot, lots or tracts of land to identify the same." National City Mortgage v. Bergman, 939 N.E.2d 1, 9 (Ill App. Ct. 3d Dist. 2010).

In its motions to dismiss Counter-Plaintiffs' claims, PNC Bank argues that neither Counter-Plaintiff has sufficiently alleged (a) that it performed work within four months of recording its lien or (b) that the alleged work ...


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