{ "id": 4306295, "name": "PARKWAY BANK AND TRUST COMPANY, Plaintiff and Counterdefendant-Appellee, v. HASO MESELJEVIC, Indiv., et al., Defendants and Counterdefendants (Beta Electric, Inc., Defendant and Counterplaintiff-Appellant)", "name_abbreviation": "Parkway Bank & Trust Co. v. Meseljevic", "decision_date": "2010-12-07", "docket_number": "No. 1\u201409\u20143396", "first_page": "435", "last_page": "449", "citations": [ { "type": "official", "cite": "406 Ill. App. 3d 435" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "13 Ill. App. 2d 208", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5170311 ], "year": 1957, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0208-01" ] }, { "cite": "208 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463178 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "431" }, { "page": "431" }, { "page": "431-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0414-01" ] }, { "cite": "376 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273542 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "288" }, { "page": "288" }, { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0282-01" ] }, { "cite": "382 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277150 ], "year": 2008, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0334-01" ] }, { "cite": "121 Ill. App. 3d 511", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559017 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "514" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0511-01" ] }, { "cite": "305 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208050 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "239" }, { "page": "238" }, { "page": "238" }, { "page": "238" }, { "page": "241" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0234-01" ] }, { "cite": "396 Ill. App. 3d 111", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4292503 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "119" }, { "page": "119" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/0111-01" ] }, { "cite": "150 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503185 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "257" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0248-01" ] }, { "cite": "208 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548997 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "685" }, { "page": "685" }, { "page": "685" }, { "page": "685" }, { "page": "685-86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0677-01" ] }, { "cite": "364 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263436 ], "year": 2006, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0740-01" ] }, { "cite": "334 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521998 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "198" }, { "page": "198" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0192-01" ] }, { "cite": "381 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3627135 ], "year": 2008, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/381/0312-01" ] }, { "cite": "215 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059670 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "385" }, { "page": "385" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0381-01" ] }, { "cite": "358 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5731927 ], "year": 2005, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0667-01" ] }, { "cite": "232 Ill. App. 3d 114", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498431 ], "year": 1992, "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0114-01" ] }, { "cite": "166 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198894 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "209" }, { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0204-01" ] }, { "cite": "226 Ill. 2d 334", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610803 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "345-46" }, { "page": "344" }, { "page": "353-54" }, { "page": "348" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0334-01" ] }, { "cite": "404 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4304949 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "580" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/404/0578-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 34224, "ocr_confidence": 0.782, "pagerank": { "raw": 7.259244762335987e-08, "percentile": 0.4327572765825343 }, "sha256": "e4852c6b01e8037bad9494769a17ac523d0dc50731f7a70642ee4a0e522858c9", "simhash": "1:138b4d6be3165a61", "word_count": 5780 }, "last_updated": "2023-07-14T19:33:07.786999+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PARKWAY BANK AND TRUST COMPANY, Plaintiff and Counterdefendant-Appellee, v. HASO MESELJEVIC, Indiv., et al., Defendants and Counter-defendants (Beta Electric, Inc., Defendant and Counterplaintiff-Appellant)." ], "opinions": [ { "text": "JUSTICE KARNEZIS\ndelivered the opinion of the court:\nPlaintiff Parkway Bank and Trust Company (Parkway) filed an action in chancery court for foreclosure of a construction mortgage and sale of the underlying real property. One of the defendants, Beta Electric, Inc. (Beta), filed a counterclaim asserting the priority of its mechanic\u2019s lien on the property over Parkway\u2019s mortgage. The court granted judgment on the pleadings to Parkway on the counterclaim and denied Beta\u2019s motion for reconsideration. Beta argues the court (1) abused its discretion by striking Beta\u2019s untimely response to Parkway\u2019s motion for judgment, denying Beta\u2019s motion for approval of the late filing and excluding Beta from oral argument for its failure to strictly comply with the court\u2019s briefing schedule; and (2) erred in granting Parkway\u2019s motion for judgment on the pleadings on the basis that Beta was a subcontractor, not a contractor, under the Mechanics Lien Act (770 ILCS 60/1 et seq. (West 2008)) and had failed to properly perfect its lien. We affirm.\nBackground\nIn 2006, Haso, Samel and Albin Meseljevic started development of a 40-unit commercial condominium project in Chicago. At some point, the Meseljevics incorporated the project as 1633 Farwell Ave. LLC. On April 11, 2006, Beta entered into a contract with Haso pursuant to which Beta would perform electrical work on the project. On May 8, 2006, Parkway entered into a construction mortgage contract with Haso and Samel, identified in the contract as \u2018\u2018grantor[s]\u201d and \u201cborrowers].\u201d Parkway recorded the mortgage on May 11, 2006. The mortgage was modified and/or renewed several times, with 1633 Farwell Ave. LLC being added as a grantor/borrower in October 2007. On May 1, 2008, Parkway accepted a promissory note executed by all three Meseljevics and by Haso as \u201coperating manager\u201d of 1633 Farwell Ave. LLC. On August 5, 2008, Beta recorded a mechanic\u2019s lien against 16 of the condominium units after the Meseljevics failed to pay Beta $136,200 due for Beta\u2019s work on the project.\nOn August 29, 2008, Parkway filed a verified mortgage foreclosure complaint naming as defendants the Meseljevics individually; 1633 Farwell Ave. LLC; the board of managers of 1633 Farwell Ave. LLC; Benz Kitchens; and unknown owners and record claimants. Parkway alleged the Meseljevics had not made any payments on the mortgage since April 2008. It requested a judgment of foreclosure on its construction mortgage secured by the promissory note, an order of possession and sale, and an order terminating all defendants\u2019 rights to possession of the property.\nOn January 26, 2009, the court entered an order of default against all defendants and granted Parkway\u2019s motion for a judgment of foreclosure and sale. In March 2009, the court vacated the default judgment against Beta in order to allow Beta to assert the priority of its mechanic\u2019s lien over Parkway\u2019s mortgage. Beta then filed a verified answer to Parkway\u2019s complaint and a counterclaim against Parkway and the Meseljevics; 1633 Farwell Ave. LLC; the board of managers of 1633 Farwell Ave. LLC; Benz Kitchens; Beta; and unknown owners and record claimants. The counterclaim asserted Beta\u2019s lien had priority over any other interests, including Parkway\u2019s mortgage. It asked for a judgment against Parkway for the $136,200 lien amount, plus costs, and/or a judgment extinguishing the interest of any other necessary party to the extent sufficient to satisfy that amount.\nOn May 7, 2009, Parkway filed a motion for judgment on the pleadings on the counterclaim pursuant to section 2 \u2014 615(e) of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 615(e) (West 2008)). It argued, in relevant part, that Beta had not properly perfected its mechanic\u2019s lien and the lien, therefore, had no priority over the mortgage. The same day, the court entered a scheduling order setting June 4, 2009, as the due date for Beta\u2019s response to the motion. The scheduling order warned that \u201cfailure to file a timely written Response or Reply will be deemed a waiver of oral argument with respect to the Response or Reply.\u201d Beta filed its response on June 5, 2009, the day after the deadline, without prior leave of court. On June 17, 2009, Parkway filed a reply to the response and an objection to Beta\u2019s participation in oral argument regarding the motion. It asserted Beta waived oral argument when it filed its response late in violation of the scheduling order. On June 24, 2009, Beta filed a motion to approve late filing. The motion was not supported by an affidavit.\nOn June 26, 2009, after argument on Parkway\u2019s objection and Beta\u2019s motion to approve late filing, the court denied Beta\u2019s motion to approve late filing, struck Beta\u2019s response as untimely and barred Beta from participating in oral argument during the hearing on the motion for judgment on the pleadings. The court then heard argument by Parkway on its motion for judgment on the pleadings on the counterclaim and granted the motion. It found Beta\u2019s lien showed Beta was a subcontractor; Beta failed to perfect its lien because it did not give statutory notice of the lien to Parkway; and Parkway\u2019s mortgage was, therefore, prior to and superior to Beta\u2019s lien. The court reinstated the January 2009 default judgment entered against Beta.\nOn August 14, 2009, the court denied Beta\u2019s motion to reconsider. The court granted Parkway\u2019s motion to confirm the sale and distribution of the unsold condominium units, those not released from the mortgage. The condominiums having sold at auction for less than the amount due Parkway under the mortgage, the court entered a deficiency judgment against the Meseljevics and 1633 West Farwell Ave. LLC. On November 6, 2009, it granted Parkway\u2019s emergency motion to modify the judgment in order to change the description of one of the condominium units listed in the previous order. On December 7, 2009, Beta filed its notice of appeal from the June 26, 2009; August 14, 2009; October 21, 2009; and November 6, 2009, orders.\nAnalysis\n1. Untimely Response\nBeta argues that the court abused its discretion in denying Beta\u2019s motion for approval of its late-filed response to Parkway\u2019s motion for judgment on the pleadings, striking the response and barring Beta from participating in oral argument on the motion for judgment on the pleadings. The court\u2019s scheduling order required Beta to file its response to Parkway\u2019s motion for judgment on the pleadings on or before June 4, 2009. Beta filed its response on June 5, 2009, one day late, without first requesting an extension of time or leave of court to file the untimely response. Beta\u2019s procedural failure to obtain leave of court prior to filing its untimely response did not render the response a nullity. Cedzidlo v. Marriott International, Inc., 404 Ill. App. 3d 578, 580 (2010). Instead, although it was within the court\u2019s discretion to strike the untimely filing, it was also within the court\u2019s discretion to allow it. Once Parkway objected to the untimely response, the court was required to exercise its discretion to determine whether it should grant Beta leave to file the untimely response. Cedzidlo, 404 Ill. App. 3d at 580.\nBeta filed a \u201cmotion to approve late filing\u201d of the response. Pursuant to Supreme Court Rule 183:\n\u201c[The] court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.\u201d 134 Ill. 2d R 183.\nRule 183 vests the circuit court with discretion to extend the time a party has to comply with a court-ordered or rule-imposed deadline, both before and after expiration of the filing deadline. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 345-46 (2007), citing Bright v. Dicke, 166 Ill. 2d 204 (1995). However, the court\u2019s discretion to allow a late response pursuant to a Rule 183 motion \u201c \u2018does not come into play under the rule unless the responding party can first show good cause for the extension.\u2019 \u201d Vision Point of Sale, Inc., 226 Ill. 2d at 344, quoting Bright, 166 Ill. 2d at 209. Accordingly, the court had the discretion to allow Beta\u2019s response to stand if Beta could show good cause for its noncompliance with the deadline. We will not reverse a court\u2019s decision to deny a motion for extension of time absent an abuse of the court\u2019s discretion. Vision Point of Sale, Inc., 226 Ill. 2d at 353-54.\nIn order to demonstrate good cause under Rule 183, Beta had the burden to demonstrate to the court \u201cclear, objective reasons why it was unable to meet the deadline and why an extension of time should be granted.\u201d Vision Point of Sale, Inc., 226 Ill. 2d at 348. In its motion for approval of late filing, Beta provided no reason for why it filed the response late. Instead, it merely stated, without explanation, that its counsel\u2019s \u201coffice was unable to file [the] response until\u201d the day following the deadline. It also stated that its counsel called Parkway\u2019s counsel and told him the response would be late and, if Parkway\u2019s counsel intended to object, Beta would seek leave of court to approve the late filing. Beta asserted Parkway\u2019s counsel told him he would not object but the court might not allow Beta to participate in oral argument.\nPutting aside the fact that Beta\u2019s motion was unsupported by affidavit, it is clear that the court had no basis on which to approve the late response. Beta\u2019s motion presented no cause for its late filing, let alone a good cause. \u201c[I]n determining whether good cause exists under Rule 183 for the grant of an extension of time to remedy an unintentional noncompliance with a [timing] requirement, the circuit court may not take into consideration facts and circumstances of record that go beyond the reason for noncompliance.\u201d Vision Point of Sale, Inc., 226 Ill. 2d at 353. Beta\u2019s alleged discussion with Parkway\u2019s counsel is irrelevant to the issue of whether Beta had good cause to miss the deadline. It might explain why Beta did not file a motion for extension of time sooner, but that is not relevant to why Beta missed the deadline in the first place. Because Beta offered no explanation of why it was unable to comply with the deadline, it failed to satisfy the good-cause requirement for relief under Rule 183. Bright, 166 Ill. 2d at 209. The court did not err in denying Beta\u2019s motion for approval of the late filing.\nBeta asserts the court denied its motion to approve the late filing without any inquiry into Beta\u2019s reasons for filing its response a day late, i.e., without considering whether Beta presented a good-cause reason for missing the deadline. The report of proceedings on the motion bears out Beta\u2019s assertion that the court did not examine whether Beta had good cause for its late filing before it denied the motion. Instead, the court appears to have denied the motion on the basis that Beta did not file the motion before expiration of the June 4 pleading deadline. Under Rule 183, a motion for extension of time to file a pleading may be granted \u201ceither before or after the expiration of the time [for filing a pleading].\u201d 134 Ill. 2d R. 183. Accordingly, it would be error to deny the motion solely on the basis that it was filed after the expiration of the court\u2019s deadline.\nHowever, as stated above, the record also clearly shows that Beta did not present the court with an adequate motion for its consideration of whether an extension should be granted for good cause. The motion for approval of late filing was unsupported by affidavit and presented absolutely no reason for missing the deadline. The court would have been unable to perform a good-faith analysis on the basis of that motion even if it had wanted to. It was not up to the court to ask why Beta missed the deadline and ferret out a possible good cause. This was Beta\u2019s burden to prove. The court did not abuse its discretion in denying Beta\u2019s motion for approval of late filing of the response and in striking Beta\u2019s untimely response filed without leave of court.\nSimilarly, the court did not abuse its discretion in barring Beta from participating in oral argument regarding the judgment on the pleadings. Oral argument in a civil proceeding tried, as here, by the court without a jury is a privilege, not a right, and is accorded to the parties by the court in its discretion. Korbelik v. Staschke, 232 Ill. App. 3d 114, 118-19 (1992). The scheduling order warned the parties that \u201cfailure to file a timely written Response or Reply will be deemed a waiver of oral argument with respect to the Response or Reply.\u201d Beta was on notice of the consequences of filing late but filed late anyway, without leave of court. As the court told Beta, documents cannot be filed outside filing deadlines without leave of court and it had entered the scheduling order \u201cjust for this sort of eventuality.\u201d It explained that, on Parkway\u2019s objection, it had barred Beta from oral argument because Beta waived argument when it filed the response late in violation of the court\u2019s scheduling order. The circuit court has the inherent authority to enforce its own orders. County of Cook v. Illinois Fraternal Order of Police Labor Council, 358 Ill. App. 3d 667, 671 (2005). It did not abuse its discretion in enforcing its order here.\n2. Judgment on the Pleadings\nA. Standard of Review\nBeta argues the court erred in entering judgment on the pleadings in favor of Parkway because the court incorrectly found Beta was a subcontractor rather than a contractor under the Mechanics Lien Act. Beta asserts the court, as a result, incorrectly concluded Beta did not properly perfect its mechanic\u2019s lien and could not establish the priority of its lien over Parkway\u2019s mortgage. Judgment on the pleadings is proper where the pleadings disclose no genuine issue of material fact and the movant is entitled to judgment as a matter of law, i.e., similar to a motion for summary judgment but limited to the pleadings. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005); Intersport, Inc. v. National Collegiate Athletic Ass\u2019n, 381 Ill. App. 3d 312, 318 (2008).\nIn ruling on a motion for judgment on the pleadings, the court must consider only those facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record. Gillen, 215 Ill. 2d at 385. When a party moves for judgment on the pleadings pursuant to section 2 \u2014 615(e), it concedes the truth of the well-pled facts in the respondent\u2019s pleadings. McCall v. Devine, 334 Ill. App. 3d 192, 198 (2002). The court deciding the motion must take all reasonable inferences from those facts as true, disregard all conclusory allegations and surplusage and construe the evidence strictly against the movant. McCall, 334 Ill. App. 3d at 198; Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005). We review a circuit court\u2019s order granting judgment on the pleadings de novo. McCall, 334 Ill. App. 3d at 198.\nB. Preliminary Matters\nBefore we turn to the question of whether the court erred in granting the judgment on the pleadings, we must consider three preliminary matters: (i) Parkway\u2019s assertion that Beta waived its objection on appeal to the motion for judgment on the pleadings because it did not preserve its arguments below; (ii) Beta\u2019s assertion that the court could not decide the motion for judgment on the pleadings without the response; and (iii) Beta\u2019s assertion that the court granted the judgment on the pleadings or a default judgment against Beta merely because Beta did not file a timely response.\n(i) Waiver\nParkway asserts Beta waived its objection on appeal to Parkway\u2019s motion for judgment on the pleadings by its failure to preserve its arguments below. There is no question that preservation of a question for review requires an appropriate objection below and that a failure to object constitutes a waiver of the issue on review. People v. Jones, 364 Ill. App. 3d 740, 748 (2006). But it is not the case that Beta failed to object to Parkway\u2019s motion. Rather, it did object but its objection was stricken as untimely. Following the reasoning of In re Marriage of Fahy, 208 Ill. App. 3d 677 (1991), we find Beta\u2019s failure to file a response within the time allowed for that response served to waive its right to file that response, but not its objection to or right to contest the motion.\nIn Marriage of Fahy, the domestic relations court had entered a default judgment against the respondent because the respondent\u2019s written responses to assorted motions were untimely and the court considered them as tantamount to no responses at all. The appellate court found no authority allowing a trial court to find a party in default and to enter judgment against him based on such default for the \u201csimple failure\u201d of a party to file a response where the party appeared before the court on the date set for hearing on the motion. Marriage of Fahy, 208 Ill. App. 3d at 685. The court found the only authority of any relevance to be Cook County Circuit Court Rule 2.1(d) (Cook Co. Cir. Ct. R. 2.1(d)), which relates to motion practice in the law division. Marriage of Fahy, 208 Ill. App. 3d at 685. Rule 2.1(d) provides that \u201c \u2018[flailure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion, or a withdrawal of opposition thereto, but shall be deemed a waiver of the right to file the respective memorandum.\u2019 \u201d Marriage of Fahy, 208 Ill. App. 3d at 685, quoting Cook Co. Cir. Ct. R. 2.1(d). As the Marriage of Fahy court explained, under Rule 2.1(d), \u201cfailure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion but merely the right to file a response thereafter. As such, it does not allow the entry of a default judgment on the motion due to such a failure.\u201d Marriage of Fahy, 208 Ill. App. 3d at 685. Although Rule 2.1(d) applies to the law division, the court could \u201cimagine no reason why it should not also apply in the other divisions of the court.\u201d Marriage of Fahy, 208 Ill. App. 3d at 685-86.\nRule 2.1(d) was promulgated to apply to motion practice in the law division and, therefore, it does not apply in this chancery case. We could find no similar rule relevant to the chancery division. However, as did the Fahy court, we will apply the precepts of Rule 2.1(d) in this case. To hold otherwise would mean that where, as here, a party appears at a hearing ready to object to a motion but its written objection to the motion is stricken as untimely and its verbal objection is barred, the party would be considered to have raised no objection at all, leading to entry of a default judgment against it at trial and waiver of the question on appeal. This is a drastic result, unwarranted by the circumstances given that the party, as the court here recognized, is clearly objecting to the motion. This determination is reinforced by the fact that, as the chancery court noted, although a court benefits from fully briefed motions, and sometimes from oral argument, a motion for judgment on the pleadings only requires that the court consider the motion, the underlying pleadings and exhibits attached to the pleadings.\n(ii) Response Required\nBeta asserts that the court could not properly decide the section 2 \u2014 615(e) motion for judgment on the pleadings without the benefit of a response of some sort. A response to a motion for judgment on the pleadings is not necessary to a court\u2019s disposition of the motion. The sole issue raised by a section 2 \u2014 615(e) motion is whether the complaint or counterclaim, when read in light of the respondent\u2019s answer, raises material questions of fact as to the existence of a cause of action. Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 257 (1986). The court, therefore, would ordinarily consider only the complaint and attachments thereto, the answer and the motion for judgment. Petrik, 150 Ill. App. 3d at 257.\nThe court considered Beta\u2019s counterclaim with attached exhibit (the mechanic\u2019s lien); Parkway\u2019s complaint with attached exhibits, on which the court had allowed Parkway leave to stand as its answer to the counterclaim; and Parkway\u2019s motion for judgment on the pleadings. The court had everything it needed to decide the merits of the motion for judgment on the pleadings.\n(iii) Improper Default Judgment\nBeta asserts that the court entered the judgment on the pleadings against Beta or a default judgment against Beta for Beta\u2019s \u201csimple failure\u201d to file a response. As the court explained to Beta during the hearing on Beta\u2019s motion to reconsider, it did not rule Beta was defaulted on the motion. Rather, it \u201csimply ruled on the merits of the motion without [Beta\u2019s] response\u201d and \u201cthe failure to file a response [did not] mean [Parkway won].\u201d The court stated it granted the motion because it was a \u201cgood\u201d and \u201ccorrect\u201d motion, not because Beta did not file a response. It subsequently clarified that its basis for granting judgment on the pleadings was that the lien was defective and never attached to the property. The court had originally vacated the default judgment against Beta in order to allow Beta to file a counterclaim. As the court explained in response to Beta\u2019s request for clarification, it had reinstated the default judgment in order to reflect the dismissal of the counterclaim pursuant to the judgment on the pleadings. The extensive discussion between the court and Beta\u2019s counsel shows the court did not enter judgment on the pleadings in favor of Parkway or a default judgment against Beta merely because Beta filed no response.\nC. Grant of Judgment of the Pleadings\nLooking now to the question of whether the court erred in granting the motion for judgment on the pleadings on the counterclaim, we find the court properly granted the motion. Beta\u2019s verified counterclaim asserted that, on April 11, 2006, Haso owned fee simple title to the real property underlying the condominium project; Beta entered into the electrical work contract with Haso on that date; all Beta\u2019s work was performed with the knowledge and consent of property owner Haso, or of Samel or Alb\u00edn with Haso\u2019s knowledge; Beta substantially completed the work on April 8, 2008; it was owed $136,200 under the contract as of that date; it recorded its mechanic\u2019s lien in that amount against 16 of the units on August 5, 2008; \u201ca mechanic\u2019s lien attaches and exists from the date of the contract between the owner and the contractor\u201d; Parkway recorded its mortgage against the property after April 11, 2006 (the date of Beta\u2019s contract with Haso); a properly perfected lien based on an original contract predating recording of a mortgage has absolute priority over the mortgage; and Beta\u2019s lien, therefore, had absolute priority over Parkway\u2019s mortgage. Beta requested a judgment against Parkway for $136,200 plus costs and/or extinguishment of the interest of any necessary party to the extent sufficient to satisfy the amount of the lien plus costs or any other relief the court deemed appropriate. The counterclaim was verified by an affidavit signed by Beta\u2019s president stating the statements in the claim were true and correct.\nBeta attached to the counterclaim a copy of the mechanic\u2019s lien and of the contract with Haso. The contract showed Haso executed the agreement and authorized Beta to perform the proposed electrical work. A rider to the contract identified Haso as \u201ccustomer.\u201d The lien identified Beta as the \u201cclaimant\u201d filing its claim for mechanic\u2019s lien against the interest in the real estate held by \u201c1633 Farwell Ave. LLC (\u2018Owner\u2019) and, Haso Meseljevic and Samel Meseljevic (collectively, \u2018Contractor\u2019) or any other person claiming an interest in the real estate by, through, or under Owner.\u201d\nThe lien stated \u201cowner,\u201d i.e., 1633 Farwell Ave. LLC, owned fee simple title to the real estate on April 11, 2006; Beta \u201cmade a contract dated April 11, 2006, with Contractor, as agent for and on behalf of Owner,\u201d for the provision of electrical services; \u201c[t]he contract was entered into by Contractor, as agent for Owner\u201d; Beta had fulfilled its obligations under the contract plus provided additional materials \u201crequested, or otherwise knowingly permitted, by Contractor, as agent for Owner\u201d; Beta completed the last substantial work on the property on April 8, 2008; and Beta was still owed $136,200 for its work.\nThe lien listed the 16 condominium units and allotted the balance due for work on each. A \u201clegal description\u201d attached to the lien identified the property as \u201cUnit 1643N-B in 1633 Farwell Avenue condominium as delineated on a survey of the following described real estate\u201d and followed with the survey description of the property. The lien was verified by an affidavit signed by Beta\u2019s president stating he was authorized to sign the verification \u201cto the foregoing original contractor\u2019s claim for mechanic\u2019s lien,\u201d had read \u201cthe original contractor\u2019s claim for mechanics lien\u201d and verified the statements therein were correct.\nParkway\u2019s motion for judgment on the pleadings filed against the counterclaim argued Beta\u2019s counterclaim and lien showed Beta did not properly perfect its lien against Parkway and its lien, therefore, had no priority over Parkway\u2019s mortgage. It asserted the lien was defective because (a) it was a subcontractor\u2019s claim for lien and Beta had not provided Parkway with the 90-day notice required of subcontractors under section 24(a) of the Mechanics Lien Act (770 ILCS 60/24(a) (West 2008)); and (b) the property described in the lien\u2019s legal description, unit 1643N-B, was not the same property to which Parkway\u2019s mortgage attached and, moreover, was not owned by 1633 Farwell Ave. LLC when Beta filed its lien because it had already been sold to another owner. The court found Beta did not properly perfect its lien and we agree.\nThe purpose of the Mechanics Lien Act is to protect contractors and subcontractors who are providing labor and materials for the benefit of an owner\u2019s property by permitting them a lien on the property. Crawford Supply Co. v. Schwartz, 396 Ill. App. 3d 111, 119 (2009). Because the rights under the Act are in derogation of common law, the steps necessary to invoke those rights must be strictly construed. Crawford Supply Co., 396 Ill. App. 3d at 119. However, once the contractor or subcontractor has strictly complied with the requirements and the lien has properly attached, then the Act should be liberally construed to accomplish its remedial purpose. Crawford Supply Co., 396 Ill. App. 3d at 119; Petroline Co. v. Advanced Environmental Contractors, Inc., 305 Ill. App. 3d 234, 239 (1999).\nTo prefect a mechanic\u2019s lien claim, section 24(a) of the Act requires a subcontractor to send or serve a notice of its lien claim within 90 days after \u201ccompletion\u201d of its work to any lending agency, \u201cif known.\u201d 770 ILCS 60/24(a) (West 2008); Petroline Co., 305 Ill. App. 3d at 238. The phrase \u201cif known\u201d is deemed to mean \u201c \u2018if discoverable by the subcontractor through searching title recording records.\u2019 \u201d Petroline Co., 305 Ill. App. 3d at 238, quoting Hill Behan Lumber Co. v. Irving Federal Savings & Loan Ass\u2019n, 121 Ill. App. 3d 511, 514 (1984). A subcontractor is held to have constructive knowledge of a lender/ mortgagee whose interest is properly recorded. Petroline Co., 305 Ill. App. 3d at 238. Compliance with this notice requirement is a condition precedent to the subcontractor\u2019s cause of action on the lien. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 389 (2008). If the subcontractor does not provide a known lender with the mandated section 24 notice, the lien is unenforceable against the lender. Petroline Co., 305 Ill. App. 3d at 241; Hill Behan Lumber, 121 Ill. App. 3d at 518. A contractor is not subject to this 90-day notice requirement. Petroline Co., 305 Ill. App. 3d at 238.\nParkway was a \u201cknown\u201d lender to Beta. The exhibits attached to Parkway\u2019s complaint, which stands as its answer to Beta\u2019s counterclaim, show Parkway is the mortgagee of the property. The filing dates in assorted exhibits show Parkway recorded its mortgage on May 11, 2006, two years before Beta completed its work on the project on April 8, 2008, or filed its lien on August 5, 2008. The counterclaim raises no issue regarding whether the mortgage was properly recorded, so we assume that it was and, thus, readily discoverable by Beta. There is no question that Beta did not provide Parkway with notice of its lien. Therefore, if Beta is a subcontractor, its failure to notify Parkway of the lien would be fatal to its lien claim against Parkway.\nThe Act\u2019s definition of contractor is as follows:\n\u201cAny person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract, to improve the lot or tract of land or for the purpose of improving the tract of land, or to manage a structure under construction thereon, is known under this Act as a contractor and has a lien ***.\u201d (Emphasis added.) 770 ILCS 60/1 (a) (West 2008).\nThe Act defines a subcontractor as follows:\n\u201cevery mechanic, worker or other person who shall furnish any labor, services, material, fixtures, apparatus or machinery, forms or form work for the contractor, or shall furnish any material to be employed in the process of construction as a means for assisting in the erection of the building or improvement in what is commonly termed form or form work where concrete, cement or like material is used in whole or in part, shall be known under this Act as a subcontractor, and shall have a lien.\u201d 770 ILCS 60/21(a) (West 2008).\nThe counterclaim does not identify Beta as either a contractor or subcontractor. But, even if it did, such would be a legal conclusion the court must disregard. The counterclaim does state that Beta entered into the contract with Haso as \u201cowner\u201d of the real estate. Arguably, therefore, by entering into a contract directly with the owner, Beta was a contractor rather than a subcontractor subject to the section 24 notice requirement. However, the contract itself does not identify Haso as the owner, only as \u201ccustomer,\u201d and there is no exhibit showing Haso was actually the owner of the property. In contrast, the lien identifies 1633 Farwell Ave. LLC as \u201cowner\u201d and Haso and Samel Meseljevic collectively as \u201ccontractor.\u201d It states Beta entered into the contract with \u201cContractor, as agent for and on behalf of Owner,\u201d and performed additional work as \u201crequested, or otherwise knowingly permitted by Contractor, as agent for Owner.\u201d On its face, the lien states that Haso was a contractor acting on behalf of the owner. This would necessarily mean Haso is (a) a contractor and (b) not the owner. If Beta entered in the contract with the \u201ccontractor\u201d and performed work at the behest of the \u201ccontractor,\u201d this leads to the conclusion that Beta was not itself a contractor but a subcontractor.\nBeta was required to attach to its counterclaim the written instruments on which its claim was based. 735 ILCS 5/2 \u2014 606 (West 2008); Gore v. Indiana Insurance Co., 376 Ill. App. 3d 282, 288 (2007), following Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 431 (2004). Beta\u2019s claim is based on the lien and the contract with Haso and it attached those exhibits to its counterclaim. Such exhibits are treated as part of the counterclaim itself. Gore, 376 Ill. App. 3d at 288; Bajwa, 208 Ill. 2d at 431. However, the allegations in the counterclaim regarding who owned the property, who Beta contracted with and who Beta was actually working for conflict with what Beta swore to in the lien. The counterclaim asserts the contract was with owner Haso while the lien says it was with contractor Haso for owner 1633 Farwell Ave. LLC.\nIf there is a conflict between the allegations in the counterclaim and the written exhibits, the exhibits will control and the allegations will not be taken as true in evaluating the sufficiency of the counterclaim. Gore, 376 Ill. App. 3d at 288, citing Bajwa, 208 Ill. 2d at 431-32, and Crerar Clinch Coal Co. v. Board of Education, 13 Ill. App. 2d 208, 217 (1957). Therefore, taking the lien as true and disregarding the conflicting allegations in the counterclaim, we find Beta contracted with and performed work for Haso, a contractor, and not directly for the owner of the property. This means Beta is a subcontractor under the definitions in sections 1 and 21 of the Act and should have provided notice of its lien to Parkway under section 24 and its lien is invalid against Parkway. The court did not err in granting judgment on the pleadings in favor of Parkway on the counterclaim.\nFor the reasons stated above, we affirm the decision of the circuit court.\nAffirmed.\nCUNNINGHAM, P.J., and CONNORS, J., concur.\nThe Meseljevics apparently abandoned the project and went back to their homelands, Bosnia and Herzegovina.\nAt the hearing on the motion, Parkway\u2019s counsel vehemently denied Beta\u2019s version of the conversation. He told the court he had initiated the phone call, calling Beta\u2019s counsel after the deadline expired in order to inquire about the response because he needed it to prepare his reply. When he informed Beta\u2019s counsel the response was past due, Beta\u2019s counsel told him it would be filed late. Parkway\u2019s counsel asserted he never consented to the late filing. The court correctly noted that it was up to the court and not counsel to approve a late filing.\nThe counterclaim states the lien was filed against 15 units but a count of the listed units shows the total to be 16.", "type": "majority", "author": "JUSTICE KARNEZIS" } ], "attorneys": [ "Law Offices of Andjelko Galic, of Chicago (Andjelko Galic, of counsel), for appellant.", "Scott & Kraus, LLC, of Chicago (Eugene S. Kraus, Jason R. Sleezer, and Blair W. Lazarus, of counsel), for appellee." ], "corrections": "", "head_matter": "PARKWAY BANK AND TRUST COMPANY, Plaintiff and Counterdefendant-Appellee, v. HASO MESELJEVIC, Indiv., et al., Defendants and Counter-defendants (Beta Electric, Inc., Defendant and Counterplaintiff-Appellant).\nFirst District (2nd Division)\nNo. 1\u201409\u20143396\nOpinion filed December 7, 2010.\nLaw Offices of Andjelko Galic, of Chicago (Andjelko Galic, of counsel), for appellant.\nScott & Kraus, LLC, of Chicago (Eugene S. Kraus, Jason R. Sleezer, and Blair W. Lazarus, of counsel), for appellee." }, "file_name": "0435-01", "first_page_order": 451, "last_page_order": 465 }