statement and owner properly pays subcontractors the amounts reflected as due to the subcontractor this is  law in illinois since knickerbocker in one nine hundred fourteen in knickerbocker initials horn statement be given by the contractor to the owner reflected that fifteen hundred dollars was due or to become to the subcontractor in reliance on contractors sworn statement the owner made payments to the contractor by that time of the last sworn statement the sub contractor this the supreme court says that the funds were withheld but the initial statement showed fifteen fifty as being too and by the time of the last statement on the nine eleven had been retained that was the  that was funds that were owned on the contract between the owner and the contractor so the initial statement showed fifteen hundred but by the time of the all the notices had been filed nine hundred eleven dollars was retain the contractor during the interim relying on this one statement but payments were not actually made on like this case the final of the final number the final dollars were not withheld the final dollars were not  the fines and they then a on the earlier sworn statements and knickerbocker also were not withheld so some funds had been withheld nine hundred eleven dollars we don't know what the reason for withholding that the court called that the amount that was  you may not agree and i understand that but there is a factual distinction between the two cases are knickerbocker the only factual distinction is that some funds were housed at by the time of the last sworn statement but not all of the to the owner and the purpose of section twenty four says that the sub contractor sworn statement is not necessary if there's been a section five affidavit but the purpose of each of the section five affidavit is to create the lien so with the section five affidavit we have a lane is created and so that section twenty four so you don't need the section twenty four notice statement and it did not it did not issue its own section twenty four notice and so there is no duty to retain funds under knickerbocker in lucic recites knickerbocker as holding that an owner properly relies on this section five affidavit and the owner can rely on that affidavit that the contractor will pay the subcontractor so in lieu sec again there were initial sworn statements the owner made payments to the contractor for so the subcontractor he made a three thousand dollars payment and he specifically testified i made the payment to the contractor expecting it to go to the subcontractor and lucic held a debt payment that the mean was limited only to the mount shown to become due in the last sworn statement so under blue sac that three thousand dollars payment made by the owner to the contractor of sounds odd to the some kind a subcontractor w proper and it was not lawful those are the only two cases in illinois that that breach the issue where it was contested by the part sec makes a mistake there is an imprecise sentence in the sec and it says if you look at the facts it shows that the last contractor statement showed twenty three eighty two become due meaning that was for future a lien is equal to the amount due on the last contract or statement but if you look at the whole opinion and contacts you can see that that was incorrect statement it was really the amount to our last statement said that one hundred thirty thousand was due and sarah was to to become the holding of loose stack is that the leaning is equal to the amount shown on the last contract your statement as to become do that would mean zero in our case because the owner has an obligation to retain funds for work to become to that means future work but not for sons that are due and or a specifically under loose  because the only thing was for the amounts shown in the last contract or statement to become to thank you so again lou stack says we this is the exact same case as knickerbocker and the owner properly makes payments to the contractor that shown on the the sworn statement we have there's cases out there that same dicta that the owner has an obligation to retain funds and that includes snyder and which was cited by the  snyder doesn't hit inside or there was no contractor's affidavit so that was just dicta it's not a holding it's controlling in this case ready mix does hold as the appellate court held below that a count that a when that the section five affidavit requires the owner to retain funds owed to the sub contractor but if you look at that case the the owner didn't contest that or opened our one hundred twenty seven dollars that was listed on the contract or statement so it was an uncontested holding ready mix does not talk about that the two only two cases before it odd that were dispositive which is knickerbocker and lewis sack and so really that's  weak case that we think should be disregarded which i'm going to say the the cut the subcontractor relied on section twenty seven and said that the owner was supposed to withhold funds based on the section five affidavit but lou sex this ific lee rejected that contention and said that under section five it's proper to go ahead and pay the for the owner to pay the general the amounts to the subcontractor based on necker back to you under your argument that the sworn five take a look at section five first section five contemplates that the owner is going to be paying the contractor it puts a condition on the payment by the owner to the contractor of receiving the section five affidavit if you take continue to look at section five there's another provision at the end that's not applicable here but it says that one homeowner is going to have remodelling work done on a residence then the subcontractor has navigation to give and i noticed directly to the owner the subcontractor does and if you look at that notice it says that you know dear homeowner sub contractors are going to be doing work on your home section five affidavit that different rights arise in a section twenty four subcontractors noticed and the section five affidavit the section five affidavit creates a lien as to section twenty four but if the section five creates a ruling on the home but it doesn't preclude the lien is created but it doesn't preclude the owner paying the subcontractor through the contract or it wouldn't take away the lien but it doesn't nothing in the says that the owner has to pay the sub contractor based on the section five affidavit but if there is a lien against your property then the subcontractor even without section twenty four but if you look at section five it contemplates that the contractor can go ahead and pay the that the owner can pay the contractor that's how it would typically be done i think if someone has their home remodeled you pay you make a check to the contractor and it's the contractors obligation to control the subcontractors and to cut the checks and pay the sub contractor that's the common law contractual responsibility between the there that clearly mandates that the owner cannot pay the contractor for sums to to a subcontractor pursuant to section five affidavit and again under knickerbocker and lose that the payments those exact payments are found proper and i understand that in the knickerbocker some son sons were retained but not the entire sum that was listed in the initial contract or statement if there was an obligation to withhold funds under the initial one when a contractor statements made it would be to withhold off funds that are listed on the contactor statement not just the last one i mean it really wouldn't make sense that well i get my first contractor statement i'm the owner i can pay that one but i just can't pay the last fund with that would not be something that the parties would be able to understand or know how do i know this is the the sub contractor wants x greater rights he has the right here she has the right to file a section twenty four affidavit this is been the law and this and in for ninety five years in the state of illinois there's no reason to deviate from you're avenue would be to proceed against the owner would it not and the owner you're on you are excuse me against the contractor the contractor is bankrupt as i understand it if you had to pay twice you would be may please the court justices will my name is douglas flack i'm the attorney for a shallow electric the apple e in this case i'd like to spend a short time responding to  university's argument and then i would like to address the issues as to the other arab news or remedies in this case the appellate raises basically three issues the first issue raised before you get into there can i ask you something kind of from a policy yes that might help frame the arguments section five mandates not only that a sworn statement but also the statements that work both the names of all the sub section five section five yes because the other requirements of the affidavit what is the purpose of the affidavit and in light of that won't it mean that the owner always most hold back from the son from the contractor of the amount of i would go basically argued that they were entitled to a lien for forty five hundred dollars and tell a court night case said what scarlett grow fail to recognize that at the time that third payout was made there was still fifty five thousand dollars yet to come due to the contractor they were supposed to be to more payments and that amount was more than sufficient to cover scarlett close claim unfortunately subsequent to the third payout and prior to the floor there was a fourth contractor's affidavit in that case but there was never any payment on it somewhere in there and were not told exactly when the general contractor breached the contract if you also look at section twenty seven section twenty seven specifically says you are required to withhold funds to cover the subcontractor from the amount due or the amount they become do when you're dealing with multiple second affidavit like if you're going to have five pay outs like we had in this case the first second third pay out you probably have sufficient funds left the common dude the contractor  the contractor on the first or second payment doesn't pay the sub contractors they pay make can be withheld and taken out of that fourth or fifth payment to satisfy the sub contractors when you get down to the last payment as we always on notice and in light of that would have an obligation to hold back i'm trying to see from a public policy standpoint what's the use of a very general contractor in those situations as own and i say yes and no i go back to as long as there is sufficient funds yet to come do the kind tractor to cover the amounts to the sub contractor could you pay decide can track oh yes i mean i don't know if that was it or subclass track that may have been in the contract between the university and stone age which we were not privy to the believe that it ever became a factual issue in the case whether there was a contract or not and i may be wrong but i thought i read somewhere in the briefs that at least initially there was no you know under and i don't recall justice whether there was a car or i've always assumed but there was a contract because of the size of the project you never saw i never saw it you know and i don't believe it was  strickly or summary judgment motions we considered a short law under under your response counsel to about payment on the section five affidavit you said yes and contractors affidavit and what it said for working there unless they received a notice from the sub contractor pursuant to section twenty four a which they would override what severing the contractors affidavit shows the sub contractors were in fact paid they could rely on that now if it shows that the sub contractors hadn't been paid well or they had received a section twenty four or a sub contractors  only on the final and fifth payout there was no funds from last to protect the sub contractors with and in that case they were required under section twenty seven to withhold the appropriate funds to make sure those contractors were paid now we filed our ninety day notice within the ninety day timeframe however it was filed after the payout had already been made now in our case we did the show work after their final contractors affidavit notice was four hundred forty thousand however under yeah we are only allowed to claim the amount that was set forth in the section five contractor's affidavit which was one hundred thirty four hours or nine forty eight forty eight but you're saying the burden is on the owner now to just withhold money not knowing that you have received a notice yes i amount that they have said thirty thousand something like that to pay the subcontractor they have to assume the contractor is going to pay them very well they can but if they make that assumption i believe occur relationship the university sending the money the same day it happened to me the money was wire transferred  cases in the third district the east peoria community school district police forces grand stage writing one nine hundred ninety two case and the bridge for its uptown national bank case which is  general contractor the bank offset the sub contractors some theory of constructive trust and we third district basically said relying on brain that the right the offset by the break supersedes are superior to any constructive trust argument on behalf of the sub contractors unless there's an actual or written trust they relied on the opinion written funds were deposited in the account of the engineering company and union national bank offset in that case the us so i could get a straight line on a case from this court nine hundred seventy seven waiter and also a bankruptcy case from the third or from the northern district of illinois again rate time here and found that there was a construct there is a worry the bike has to make as to who is rightfully entitle to those deposits in addition if you look at section twenty one point zero two of the act which leaning now in a lot of situations the contract will go to the sub guy attractor say i need your waiver got to give it to the owner so that i can get paid in there i'll pay you guys if that happens under twenty one zero two there was specifically a position i think i took the simple fact that higher strake was able to offset those accounts when actually that money was deposited there on behalf of the sub contractors by the university was wrongful be a contract some kind of contract and i know i would assume there was a written contract and other than that i don't know i think i look quickly in my appendix and i don't see  state that case law requires the owner to retain funds under the section five affidavit but he doesn't tell us what that case law is and again other knickerbocker in lieu sac payments made by the owner to the contractor pursuant to the sworn statement were proper and that you know that's the law in illinois the only other case that's contrary to that is the ready next case and again that's a uncontested case for the owner admitted that he own one hundred twenty seven dollars and that case doesn't make any analysis of the precedent that was in existence at the time when it was decided including le second knickerbocker it doesn't make any analysis of the act and that's the only case out there one i mean we've assumed that there was a contract that required payment from the owner to the contractor that is a relevant fact but i can't point you to that contract if  what i was going to go to is something that mr slack talks on that was the lean waivers would be relevant to our inquiry or even public policy as to what the act is intended who the act is intended to protect a contract provided for or obviously the owner can always request lien waivers before paying those made out which would require the contractor to get a lien waiver from the subcontractor before payment was made you know whether that was in the contract or not i'm paraphrasing not withstanding the contracts between the parties a payment by the contractor to the subcontractor is proper which is likely to find that exact language so under that section assuming it were applicable the section does override the contractual the contrast between the parties but it can't but because it's in derogation of the common law which would enforce the contract says written it has to be needs to be strictly construed and it has to be pretty well expressed they stated that that's the result it can't be derived by like in ten men or it must be what the legislature intended it has to be strictly construed that's analysis there's no reason to deviate from knickerbocker that's been the law in the state of illinois for many years and the university