Nos. 2-09-0631, 2-09-0632, 2-09-0634, 2-09-0635, 2-09-0636, 2-09-0637, 2-09- 0638,

2-09-0639, 2-09-0640, 2-09-0641, 2-09-0642, 2-09-0643, 2-09-0644, 2-09-0645, 2-09-0646,

2-09-0704 cons. Filed: 6-22-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--284 ) CHA RLES and PE GGY BEN DOW SK I, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--285 ) ANTHONY KROLAK a nd JENNIFER ) SCHMIDT, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--286 )No. 2--09--0631 & cons. cases

-2-

JA MES PIEN IAZE K an d P ATR ICIA ) PIENI AZEK, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--287 ) NORMAN a

nd KAREN CO OPER, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--288 ) JEREMY and ST

ACY HI CKS, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--289 ) U.S. BANK, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman,No. 2--09--0631 & cons. cases

-3-

(Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--290 ) ZACHARY and J ENNIFER SUNLEAF, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--291 ) DAN IELE a nd D ONN A P EP PO NI, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--292 ) CHRISTOPHER and ASHLEY MORGAN, )

) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty.No. 2--09--0631 & cons. cases

-4-

Plaintiff-Appellee, ) ) v. ) No. 07--CH--293 ) DAMIEN and SAR

AH EFTEKHAR, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--294 ) MICH AEL B LANK ENS HIP, JA CQU ELIN ) BLANKENSHI

P, and MORTGAGE ) ELECTRONI C REGI STRATI ON SYSTEMS, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--295 ) VASI LES a

nd EVEL YN PANAG

UOLE AS, ) ) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--296No. 2--09--0631 & cons. cases

-5- ) HARVEY a

nd LU ATH L AUER, )

) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--298 ) WILL IE and SUSANNA DOOL ITTL E, )

) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--300 ) PHILLI P and MARY AGRELL

A, )

) Defend ants-App ellants ) Honorab le ) John W. Countryman, (Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ ACTION PL

UMBING COMPANY, I NC., ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff-Appellee, ) ) v. ) No. 07--CH--299 ) CAROLE A. McL

AUGHLI N, )

) Defend ants-App ellants ) Honorab le ) John W. Countryman,No. 2--09--0631 & cons. cases

-6-

(Neumann Homes, Inc., D efendant). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE SCHOSTOK d

elivere d the opini on of the c ourt: This is a consolidated appeal from orders e ntered on June 9, 200 9, followi ng a be nch tria l, to f oreclo se mech anic's liens in 16 separa te law suit s fil ed by the p laint iff, A ction Plum bing C ompan y (Action). Action filed the suits to recover amounts owed to it for residential plumbing work from
anallegedly

bankrupt developer, Neumann Homes (N eumann). Befor e Action f

iled these suits, Neumann sold the subject properties to the defendant homeowners (collec t iv el y t he Subsequent Purchasers). Each June 9, 2009, foreclosure decree included an amount

for the attorney

fees Action incurred in filing the liens and prosecuting these sui ts. On appeal, the Subsequent Purchasers arg ue that the trial court erred

in including Action's attorney fees in the foreclosure decre es, on the ground that it violate s section

17(b) of the I llinois Mec

hanics L ien Act (Lien

Act) (770 I

LCS 60/17(b)(West 2006)). We

revers e and re

mand for additiona l procee dings. Neumann was a residential home builder that developed the subject prope rties. Each propert y was in either the Walnut Woods or the Chatham Grove subdivision in Kane County. F or each property, Ne

umannentered into a contract with Action to perform residential plumbing work. Neumann was the owner of the properties when it entere d into the contracts with Actio n. The Subsequent

Purchasers took title to their prop erti es afte r Neuman n had ente

red into the contra

cts with Action and, in most cases, before the liens were filed. Act ion complete d the plumb ing wor k on each proper

ty. When Neumann fail ed to pa y Action, Action recorded claims for liens in the office of the Kane County r

ecorder of deeds in June, Ju ly, and October 2006, pursuant to the Lie n Act (770 IL CS 60/0. 01 et seq
. (West 2006)). On Februa ry 7, 2007, A ction file d 16 sepa rate ve rified c omplaints t

o forec lose onits mechanic's liensNo. 2--09--0631 & cons. cases

-7-

onthe prope

rties and sought a ttorney fees pursuant to se ction 17( b) of th e Lien Act

(770 I LCS 60/17(b) (West 2006)). The complaints named Neumann

and the respective Subsequent Purchasers as defe ndants. OnSeptembe

r 27, 2007 , Neuman

n and the S ubseque

nt Purcha sers (c ollective ly t he defenda nts) move d to dismiss Action's complain ts pursua nt to section 2--619(a)(9) of the Code of Civil Procedure (735 IL

CS 5/2--619(a)(9) (West 2006)) because the claims for liens did

not strict ly comply with the requirements of the Lien Act. Specifically, the de fendants alleged that neither the lienclaims nor

the compl aints to foreclose included a brief statemen t o f the con tracts at issue as required by sections7 and 11 of the Lien Act (770 IL CS 60/7, 11(a)(i) (West 2006)). Thereafter, on November

1, 2007, Neumann filed a petition for relief under the United States B ankruptcy Code a nd the cases were automatically stayed. See 11 U.S.C. §362(a) (2006) (the filing of a bankrup tc y petition automatically stay s the commencement

or continuationof judicial proceedings aga inst the debtor)
. On June 4, 20 08, Action advised the trial court tha t it had obta

ined an or

der from t h e bankrup tcy

court lif ting the automatic

stay . The tria

l court the

n denied t he defe ndants'motions to dismiss and

ordere d the def

endants t o answer the compl aints. Neumann did not answer any

of th e comp laints and was defaulted. The Subsequent Purchasers (except for the Subseque nt Purcha ser in

case No . 07--CH- -299) an swered the compl aints and move d for partial summary judg ment, asking the trial court to declare that the Subsequent Purchasers were not liable for Action's attorney fees. On January

29, 2009, the trial court entered
anorder stating that Action could not obtain personal judgments aga inst the Subsequent Purchasers for attor ney fees inc urred by Action in f

iling its l ien claim s and pros ecuting the fore closure

suits.No. 2--09--0631 & cons. cases

-8-

OnJune 1, 2009 , a bench trial wa s held. Th e trial c ourt gr anted Acti on a lien for each amount claimed, plus interest and costs. The trial court also stated that it would tax Neumann for Actio n's attor ney fees. T he tri al jud ge speci fical ly stated , "[w] hen I'm ta xin g attor neys' fees, I'm taxing t hem on Neumann Homes." The trial court then order ed that the attorney

fees be included in the for eclosur e decre es to be e

ntered a gainst t he Subseq

uent Purc hasers. OnJune 9, 2009, the trial court entered a "Decre e of Forec losure of

Mechani c's Lien and Sa

le of Property" for e ach of the 16 su its, nunc p ro tunc to June 1, 2009. Each decree included, as the amount due to Action, the balance due on the contract, intere st pursuant to section 1 of the Lien Act (770 IL CS 60/1 (West 2 006)), a nd Action 's attor

ney fees. Each decree stated that Action' s attorney fees "are t axed as co sts against Neumann." Further more, each

decree stated that the "defe ndants, or
some o f them," sha ll pay to Action t

he amount

due and ordered

that in de fault of t

he defe ndants' payment of that amou

nt "the Su bject Pro perty *** shall be sold at public auction *** pursuant to the usual proceedings for a judicial sale." Prior to the entry of the de crees, the Subsequent Purchasers in each c ase, except case No. 07--CH--299, objected to the inclusion of attorney fees in the foreclosure decrees. On June 18, 2009, the Subsequent Purchaser in case No. 07--CH--299, who wa s not represented by counsel at trial, filed
a motion for

modifica tion of jud

gment, a sking the

trial cou rt to exclud

e Action' s attorne

y f ees. On June 25, 2009, the trial court denied that motion. Each of the Subsequent

Purchase rs filed a timely notice of appeal and a motion to stay enforcement of the trial court's June 9, 2009, forec losure decree pending this appeal. On July 9, 2009, on

this cour t's own motion, the

appeals inthese 16 cases were consolidated

for review. On July

14, 2009, t

his court de

nied the Su

bsequen t Purchas ers' mo tions to stay enforc ement of

the fore closure

decree s.No. 2--09--0631 & cons. cases

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Onappeal, the Subsequent Purchasers arg ue that the trial court erred in including Actio n's attorney fees in the decrees of foreclosure. Alternatively, the Subsequent Purchasers argue that the trial court did not have a proper legal b asis to tax A ction's attorne y f ees ag ainst Neu

mann, bec ause Neumann had defaulted in all the cases. Finally, Action re quests in its appellee brief that we remand the case so that it ma

y pe tition the t

rial cou rt for its reasona ble attor ney fees inc urred on appeal. Section 17 (b) of th e Lie

n Act pro vides: "If the court specifically

finds that the owner who contracted to ha ve th e improveme

nts made failed to

pay any lien clai mant the f ull contra ct price , includin

g extras , withoutjus t cause o r rig ht, the court may tax that owner, but not any other party, the
reasona ble attorney' s fees of the lien claimant who had perfected and pro ven his or her claim." 770 ILCS 60/17(b) (West 2006). Inthe pres ent case , it

is undisputed that the owner that contracted to have the plumbing work done
oneach of the properties was Neumann. See 770 IL CS 60/1 (West 2006) (identifies the "owner" as the party who contr

acts with the contr acto r). With r espect to the first argument on appeal, the questi onis whether, by including Action's attorney

fees in the foreclosure decre es, the trial cour t "taxed" the Subsequent Purchas ers with A cti on's attorney fees in violation of section 17(b) of the Lien Act. The primary objective in interpreting a statute is to ascertain and give effect to the intent of the legislature. County of Du Page v. Illinois Labor

Relations Board , 231 Ill. 2d 593, 603-04 (2008). The best indicator of

that inten t is the language of the statute, whic h must be accorded its plain and ordinary mea

ning. Coun ty of Du Pa ge , 231 I ll. 2d at 604. Words and p hrases m ust be interpreted inlight of other relevant provisions and the s tatute as a whole. Coun ty of Du Pa ge , 231 Ill. 2d atNo. 2--09--0631 & cons. cases

-10-

604. In a ddition tothe language of the statute, c ourts may consider the purpose behind the law, "the evils sought to be remedied," and the consequences that would result from construing the law one way or the other. Coun ty of Du Pa ge , 231 Ill. 2d at 604. If a statute is ambiguous, we may consider extrinsic aids such as legislative history
. County of Du Pag e , 231 I ll . 2d at 604 . A statute is ambiguous if

it is susceptible to more than one reasonable interpretation. County of Du Page , 231 Ill. 2d at 604. Questions of statutory interpretation are reviewed de novo . County of Du P age , 231 Ill. 2d at 603. Under the plain language of section 17(b) of the Lien Act, Action' s attorney fe es can be taxed only against Neumann, not the Subsequent Purchasers. I n g ranting

th e Subsequent Purchasers' motions for par

tial summa

ry judgmen t, the trial court re cognize d that it co uld not tax the Subsequent Purchasers with Action's attorney fees under

section17(b) of the Lien Act. More over, after trial, the trial court specifically

stated that it was taxing Action's attorn e y fees on N eumann. However, by including Action' s att orney fees in the for

eclosur e decre es, the tr

ial cour t effectively

taxed those attorney fees on the Subsequent

Purchasers in violation of section 17(b) of the Lien Act. Neumann
no longer had an interest in the properties and ha d defaulted in each case. As such, the foreclosure decrees placed the Subsequent Purchasers in a position where they

had to either pay Ac

tion's attorney fees or have their homes subjected to judicial sale. Indetermining that the Subsequent Purchasers were imprope rly taxed, we find Fair Play Devel opment

Organization v. Sarmach , 263 Ill. App. 593 (1931), instructive. I n Fair Play , t h e Sarmachs contracted with F air Play 's pred ecessor in intere st to perform labor and furnish ma

terials for improvements to the Sarmachs' property
. Fair Play , 263 Ill. App. at 595. The contract include d
anagreement for attorney fees in the event of

defaul t of payment. Fair Play , 263 Ill. App. at 600.No. 2--09--0631 & cons. cases

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After the work was completed and the Sarmachs did not pay , F ai r P la y ins tituted a proceed ing to foreclose on a mechanic's lien ba sed onthose improvements. Fair Play , 263 Ill. App. at 595. The Sarmach s, the Calumet

City State Bank (B ank), as trustee, and unknown owners of certain trust deed notes were made defendants to the proce eding. Fair Play , 263 Ill. App. at 595. TheSarmach s did notappear and were defaulted. Fair Play , 263 I ll. App. a t 595. Fa ir Play prevail ed in its cl aim to foreclose. Fair Play , 263 I ll. App. at 595. The decreerequired "the said defendants, or some or other of them" to pay the

entire sum due to F air Play , includin g an amo unt for F air Play

's attor ney fees. Fair Play , 263 Ill. App. at 599. Onappeal, the Bank argue d, in part, that the decree erroneously included attorney

fees. Fair Play , 263 Ill. App. at 597. The reviewing court noted that attorney f

ees were claimed to be due not under the Lien Act, but rather under

the contract entered into between the owne r and the contractor, to which contract the Bank was not a par ty. Fair Play , 263 Ill. A

pp. at 600. The reviewing court further stated: "The effect of the decree in this respe ct is to reduce the r ights and obligations of the mortgagee

to anequality with the owners of the fee as against the lien claimant, and places the bank in a positionwhere it mus t either p ay the lien c laimant in

full, or lo se its rig

hts entirely ***." Fair Play , 263 Ill. App. at 599. Ac co rd in gl y, the revi ewing c ourt held that it wa s error

to require

the Ban k to pay the attorne

y fees and"to ut ilize the procedure of the mechanic's lien statute to fa cilitate the collection of [ that ] judgment." Fair Play , 263 Ill. App. at 600. Inthe present

case, a s in Fair Play , the Subsequent Purchasers, who pursuant to section 17(b) of the Lien Act co uld n ot be t axed for Act ion's attorne y f ees, we re in a po sition whe

re they had toNo. 2--09--0631 & cons. cases

-12-

either pay Action' s attorney

fees or lose their rights entirely . Similar to the foreclosure decree in Fair Play , the decrees here

required that the "defendants, or some of the m," pay the attorne

y fees or have the prop ertie s subjected to judicial sale. Although the trial court specifically indicated that it was taxing t he at to rn ey fees against Neu mann, Ne umann no longer h ad any interest in the pro

perties. Therefore, Neumann

was not in

a position where it had to pay those fees to avoid any

loss of inte

rest. As such, adding the at

torney fees to the lien claims violated section 17(b) of the Lie n Act, which p rovides that attorney fe es cannot be taxed against any party other tha

n the owner--in thi s case , Neumann. Alth ough the statut

e is not amb iguous, an d we need not consider extrinsic aids of construction, it is important to note that the legislative history supports our deter mination. Section 17(b) of the Lien

Act was added by a

mendment in 1995. See 770 IL CS 60/17 (West 1996) (as amended by Pub. Act 89--253, eff. August 8, 1995). During discussionspreceding thepassage of the amendme

nts in the H ouse, Represe ntat ive Cross made the following remarks describing the amendme nts: "[ Th ey] provide[] that when attorney' s fees are awarded for the failure to pay a lien, *** they
can only be issued and ca

n only be order

ed to be paid against the owner of the property , not any other subsequent purchasers of the property." 89th I ll. Gen. A ssem., Ho use Proce edings, May 24, 1995, at 325 (stateme nts of Representative Cross). Here, because Neumann no long er had any property intere st in the subject homes and defaulted in thesecase s, the

Subse quen

t Purc hase rs we re ef fect ively taxe d with Ac tion's attorney fees in violation of section 17(b). Action argues that the opposite d

etermina tion is prop er beca

use the pu rposeof theNo. 2--09--0631 & cons. cases

-13-

Lien Act is to protect the lien claimants. However, the foregoing legislative history ind icates t

he intent of t he legi slature t

o also pro tect subs equent pu rchase rs under certain circumst ances. Actionargues that Kalina v. Steinmeyer , 103 Ill. App. 502 (1902), Kendall v. Fader , 99 I ll. App. 104 (1901), Mirar Development, Inc . v. Kroner , 308 Ill. App. 3d 483, 487 (1999), and Fair Play support the proposition that attorney fe es should be included in the foreclosure decree s. However, Kalina was decided under section 18 of the 1895 Mechanics Lien Act, whic h specifically pr

ovided: "Sec. 18. The costs of

proceedings as between all the parties to the suit, shall be taxed equitabl y against the losing parties. *** In all ca ses where liens are enforced, *** the court shallorder a reasonable attorney 's fee *** taxed

as part of the costs, in favor of the claimant ***." Ill. Rev. Stat. 1895, ch. 82, par. 32. Kalina , 103 Ill. App. at 505. Accordingly, under the ver sion of the Lien Act at issue in Kalina , it was mandatory

for the court to order that reasonable attorne y fees be taxed as part of the costs against "the losing parties." I f this version of the Lien Act wer e still in effect, the Subsequent Purchasers could be taxed the attorney f

ees as "losing parties." Howe ver, the Lien Act has be en am ended
numerous times since then, and the ver s ion of the Lien Act applicable in this case does not allow Subsequent Purchasers to be so taxed. See 770 ILCS 60/17(b) (West 2006). In K e ndall , attorney fe es were not included or secured by the lien, because the effective versionof the Lien Act did not provide that

attorney fe es were part of the remedy
. Kendall , 99 I ll. App. at 105-06. In Mirar Development , the r eview ing cou rt con clude d that , alth ough the Lien Act ineffect at the time of thecontract neither provided for nor prohibited an award of attorney fees, the parties' contract did

so provide and, therefore, the trial court er red when it denied Mirar Devel opmen t's request for attorney fees. Mirar Development , 308 Ill. App. 3d at 483. However, theNo. 2--09--0631 & cons. cases

-14-

reviewing court in Mirar Development did not specifically state that the a ward of attorney

fees should have be en includ

ed in the f

oreclos u re dec ree, an

d even if it had so sta

ted, the d efenda nt in that case was the owner, not a subsequent purcha ser as in the present case. Ac co rd in gl y, those cases do not supp ort the pr

oposition that Action 's attor ney fees mus t be secu

red by the liens. Fi na ll y, Action ci

tes Fair Play

to support its argument tha t the trial co urt did not

err in including the attorney f

ees in the foreclosure decrees. Action suggests that the attorney fees were excluded in Fair Play

because the effective version of the Lien Act did no t provide

for attor ney fees. Actionfurther suggests that this holding supports the propos ition that attorney fee s should be secured by a mecha nic's lien if the Lien Act provides for those f ees. However, as explained above, Fair Play supportsthe opposi

te propos ition. Act

ion attempts to dis t inguish Fair Play on the grounds that Actio n's liens were superior to all other interest s and that

the attor ney fees at issue in Fair Play

were contractual, no t s ta tu to ry. Both of these are distinctions without a difference. I n Fair Play , including the attorney fe es as part of the foreclosure dec ree improperly

taxed the wrong party
. The defendant Bank in Fair Play

could not b e tax ed wit h atto rney fees, becaus e the co ntract provi ding f or the attorney fees was between the owner and the contractor. In the pr

esent case, including the attorney fees as part o f the lien

judgmen t improper

ly ta xed the wro

ng par ties, the S ubseque

nt Purcha sers, because section 17(b) specifically prohibits the taxing of fees against any party other tha

n the owner (770 IL CS 60/17(b) (West 2006)). Actionalso argues that the trial court clear ly taxed the attorney

fees against Neumann and that the question for review is how it is supposed to collect the taxed attorne y fees- -fro m the proceeds of sale or by

execution of a personal judgment against Neuma nn. Action argues that

the taxedattorne

y f ees must come from

the proceeds of sale because the L ien Act allows for a personalNo. 2--09--0631 & cons. cases

-15-

judgment only where the proceeds of sale ar e insufficient to make a lien claimant whole. See 770 IL CS 60/19 (Wes t 2006) (i ndicatin g that if the proc eeds of s ale result in a deficiency , the deficiency
can be enforced personally

against the defendant). Action cites cases such as Standard Bank & Trust Co. v. C al laghan , 215 Ill. App. 3d 76 (1991), Swords v. Risser , 55 Ill. App. 3d 676 (1977), and Beaudry v. Bell , 250 Ill. App. 468 (1928), for that pr oposition. Howeve

r, these cases w ere all decided prior to the 1995 ame

ndments to the Lien Act, which added se ctions 17(b) through 17(e). See 770 IL CS 60/17 (West 1996) (as amended by Pub. Act 89-- 253, eff. August 8, 1995). Section17 of

the Lien Act does not provide a specific mechanism for the taxing of a ttorney fees; it neither prohibits nor provides that an a ttorney fee

award be included as part of the lien judgmen t. It does spe c ifically provide, howe ver, that attorney

fees may not be taxed against any party other than the owner. 770 IL CS 60/17(b) (West 2006). By including the attorney f

ees in the foreclosure decree s where the owne r, Neuma nn, no long er had a

n intere st in

the properties and had defaulted, the trial

court ef fective ly ta

xed the Su

bseq uent Purc

hasers f or those a

ttorney fees in violation of the Lien Act. The trial court may , however, enter a personal judgment ag ainst Neumann for those attorney

fees without violating the statute. That a personal judgment for a ttorney fees is not imprope

r under t he Li en Act is demonstrated

by section 17(c)

(770 IL CS 60/17(c) (West 2006)). Section 17(c) provides that if a lienclaimant brings an action under the L ienAct without just cause or right and the li en nece ssarily fails, the trial

court ma y a ward an owner hi s or her r

easonab le attorney fe es for defending the action. 770 IL CS 60/17(c ) (West 200 6). Acc ordingl y, t he trial c ourt may

enter a persona l judgme nt agai nst
a lien claimant for an owner's attorney fees even though, because the claim for lien failed, there ha s be en no ju di ci al sa le an d n o d ef ic ie nc y.No. 2--09--0631 & cons. cases

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Fi na ll y, Action argues that the attorney fees were part of the

liens that attached when

Action made its contracts with Neumann and that the Subs equent Purchasers purchased those proper ties subject to those fees. However, as stated, section 17 of the Lien Act does not specifica lly provide that the attorney f

ees must be included as part of the lien judgment. Additionally, section 1 of the Lien Act states that a contractor has a lien upon property

"for the amount due to him or her for the materia l, fi xt ur es , a pp ar at us , m ac hi ne ry, services or labor, and interest at the rate of 10% per a nnum from the date the same is due." 770 IL CS 60/1 (West 2006). Section 1 does not mandate that the lien inclu de an amo

unt for r easonab le attorney

fees. Ac co rd in gl y, we reverse the determination of the trial cour tso far a s it

improperly taxed the Subsequent

Purchasers for Action's attorney fees by including those fe es in the f

oreclos ure dec rees. Based onthis determination, we need not address the Subsequent Purchasers' alterna te argument that the trial court had no legal basis to tax attorney fees on Neumann. Ad di ti on al ly, we note that in its appellee brief, Action argues that it is entitled to posttrialattorney fe es and requests that we remand thesecases to allow it to petition the trial court for the attorney

fees i t incu rred af

ter th e tria l cour t's June 1, 2009, order. Because we a re remanding on the first issue, Action will have the opportuni

ty to petition the trial court for posttrial attorney fees, which can be taxed against only Neumann. For the fo regoin g reason s, th e judgm ent of th e circu it court of Kane Cou

nty is reversed in part and the cause is remanded for a dditional proceedings consistent with this opinion. Reversed in part and remanded. ZENOFF, P.J., and BOWMAN, J., concur.