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Laborers' Pension Fund v. Brandon Excavating, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 4, 2019

LABORERS' PENSION FUND and LABORERS' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY; THE CHICAGO LABORERS' DISTRICT COUNCIL RETIREE HEALTH AND WELFARE FUND and CATHERINE WENSKUS, Administrator of the Funds, Plaintiffs,
v.
BRANDON EXCAVATING, INC., f/k/a BRANDON EXCAVATING, LLC, an Indiana corporation, Defendant.

          MOTION TO CONFESS JUDGMENT

          LEFKOW JUDGE

         Now come Plaintiffs, Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, the Chicago Laborers' District Council Retiree Health and Welfare Fund, and Catherine Wenskus, (collectively referred to hereinafter as the "Funds"), by and through their attorney, G. Ryan Liska, and hereby move this Court for an confess judgment on the settlement agreement and installment note entered into by the parties in the above referenced matter. In support of this Motion, Plaintiffs state as follows:

         1. On November 1-3, 2017, the Funds filed a complaint against Brandon Excavating Inc., f/k/a Brandon Excavating, LLC ("Company") as a result of the Company's failure to produce its books and records for an audit and its failure to submit and pay monthly fringe benefit and union dues reports for the period of August 2017 forward.

         2. On April 8, 2019, the Funds and Company resolved this lawsuit when the parties entered into a Settlement Agreement, Installment Note and Guaranty of Payment and Indemnification wherein the Company and its owner Michael Szarmach agreed to pay all amounts in the Funds complaint. A true and accurate copy of the settlement agreement, installment note and guaranty are attached as Exhibit 1.

         3. The Settlement Agreement and Installment Note required the Company to pay $53, 000.00 to the Funds over the course of thirty-six (36) months with the Company remitting an initial down-payment of $5, 421.93 on or before April 15, 2019 and the first monthly installment of $1, 598.45 on or before May 15, 2019. (See Ryan Lacey Affidavit, Paragraph 4 which is attached as Exhibit 2)

         4. As part of the Settlement Agreement, the Company admitted $59, 051.83 was due; however, in order to resolve this matter the parties agreed to reduce the settlement amount to $53, 000.00 provided that the Company comply with the terms and conditions of the settlement documents. The parties agreed that in the event that the Company defaulted on the terms and conditions of the settlement documents and failed to cure the default within the ten (10) day cure period judgment would enter in favor of the Funds and against the Company in the amount of $59, 051.83 less any applicable credits.

         5. By virtue of failing to remit the $5, 421.93 Installment Note down-payment and first monthly installment of $1, 598.45 the Company defaulted under the terms of the Settlement Agreement and Installment Note.

         6. Paragraph 4 of the Settlement Agreement provides in the event that the Company fails to timely remit a settlement payment the Funds shall issue a written notice of default to cure within ten (10) days. In the event that the Company fails to cure the default, Paragraph 4 further provides that judgment shall enter in the amount of $59, 051.83 plus any reasonable attorney's fees and costs incurred by the Funds as a result of enforcing the agreement.

         7. On May 21, 2019, the Funds provided written notice of default to the Company and Michael Szarmach which set forth the reason for the default and further requested that the default be cured within ten (10) days. A true and accurate copy of the written notice of default which was sent via U.S. Mail is attached hereto as Exhibit 3. The Company however failed to cure the default. (See Lacey Affidavit, Paragraph 5).

         8. By virtue of failing to remit the down-payment and first monthly installment and failing to cure the default, the Company is in default of the terms and conditions of the Settlement Agreement and Installment Note. Allowing for all just due credits judgment should enter against the Company in the amount of $59, 051.83 plus $500.00 of attorney's fees incurred by the Funds as a result of preparation and filing of this motion.

         WHEREFORE, Plaintiffs respectfully request that this Court grants it Motion to Confess Judgment and;

         a. enter judgment in favor of the Funds and against Defendant Brandon Excavating, Inc. f/k/a Brandon Excavating, LLC in the amount of $59, 051.83 plus $500.00 in attorney fees incurred by the Funds and enforcing the terms of the Settlement Agreement and Installment Note;

         b. order Defendant Brandon Excavating, Inc. f/k/a Brandon Excavating, LLC to pay post judgment interest on the judgment ...


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