What is the name of your state (only U.S. law)? Illinois (Cook County)
Background
I am a contractor who hired a subcontractor to work on a home addition. About 50% was paid mid-job, and then the rest paid in check at the 'reported' end. I received an unconditional notarized final waiver of lien in exchange for final payment. The following day, my architect/engineer inspected the property and reported, to put it short, that all of the sub's work needed to be demolished and redone. I contacted 2 attorneys and both told me to put a stop payment on the check, which came in effect the next day. The check was rejected once it hit my account.
Lien
About 2 month later, the sub placed a lien on the property for the amount due. I immediately mailed a demand to commence suit. Within the proper timeframe, they filed suit against me personally, my llc, and the property owner. Count 1 is to foreclose, count 2 breach of contract, and count 3 unjust enrichment. I have sent a few letters to persuade him to remove the lien to no avail.
Questions
I have been researching, and think that filing a motion to dismiss is the right way to go. One case that I feel has some good info is:
G. Chicoine Contractors, Inc. v. John Marshall Building Corp., 11 Ill.App.2d 437, 222 N.E.2d 712 (2d Dist. 1966)
What I gather from that is that unless the waiver was obtained through fraud, mistake, or duress, that it should be considered valid. I think the subs only response to this would be that I issued the check in bad faith. My defense to that would be that when the check was written, funds were available, and I had every intention of paying. It was just my luck that the sub hadn't tried to cash the check until 4 days later and that I quickly had an inspection. I am not worried about the breach of contract and unjust enrichment counts, since I am planning a counter-suit, but I do want the lien off of the building asap.
THANKS for any help/guidance.
Background
I am a contractor who hired a subcontractor to work on a home addition. About 50% was paid mid-job, and then the rest paid in check at the 'reported' end. I received an unconditional notarized final waiver of lien in exchange for final payment. The following day, my architect/engineer inspected the property and reported, to put it short, that all of the sub's work needed to be demolished and redone. I contacted 2 attorneys and both told me to put a stop payment on the check, which came in effect the next day. The check was rejected once it hit my account.
Lien
About 2 month later, the sub placed a lien on the property for the amount due. I immediately mailed a demand to commence suit. Within the proper timeframe, they filed suit against me personally, my llc, and the property owner. Count 1 is to foreclose, count 2 breach of contract, and count 3 unjust enrichment. I have sent a few letters to persuade him to remove the lien to no avail.
Questions
I have been researching, and think that filing a motion to dismiss is the right way to go. One case that I feel has some good info is:
G. Chicoine Contractors, Inc. v. John Marshall Building Corp., 11 Ill.App.2d 437, 222 N.E.2d 712 (2d Dist. 1966)
What I gather from that is that unless the waiver was obtained through fraud, mistake, or duress, that it should be considered valid. I think the subs only response to this would be that I issued the check in bad faith. My defense to that would be that when the check was written, funds were available, and I had every intention of paying. It was just my luck that the sub hadn't tried to cash the check until 4 days later and that I quickly had an inspection. I am not worried about the breach of contract and unjust enrichment counts, since I am planning a counter-suit, but I do want the lien off of the building asap.
- Am I correct in my thinking, or is it not this cut and dry?
- Did my putting a stop payment on the check invalidate the waiver of lien?
- Since I am being sued personally, can I file the motion pro-se, or does it have to be filed by an attorney on behalf of all defendants?
- Do I need to file an appearance and/or answer before the motion is filed (I haven't filed an appearance yet because none of us have been properly served)?
THANKS for any help/guidance.