No. 3-08-0237

______________________________________________________________________________ Filed January 14, 2010 CORRECTI ON IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2010

______________________________________________________________________________ DAVI D W. FAND EL, I

ndividual ly ) Appeal from the Circuit Court and d/b/a Fandel Construction, ) of the 13 th Judicial Cir cuit ) Burea

u County, Illi

nois , Plaintiff -Appella nt, )

) No. 07-CH-91 v. ) ) TIFFANY

ALL EN, ) Honorab le ) Cornelius J. Hollerich, Defendant-Appellee. ) Judge Presiding.

______________________________________________________________________________ JUSTICE McDADE d

elivere d the opini on of the c ourt:

______________________________________________________________________________ Plaintiff, David Fandel, doing business as Fandel Construction, perf ormed construction work for defendant, Tiffany Allen, on defendant’s home. After the project was complete, plaintiff recorded a “claim for lien” a nd commenced suit to foreclose the lien after defe ndant stopped pa

yme nt on the check she

tendere d in pay

ment of the

service s. Plaintif

f now app eals from the trial court’s granting of summar y judgment in fa

vor of defendant. We reverse and remand. FACTS In July 2007, def

endant c ontacte d plaintif

f and re quested t

hat plain tiff submi t a bid to replace the roof on her home. Plaintiff inspected the r oof. The day

after his inspection, plaintiff2

tendered a written, itemized work order to defenda nt for her consideration. Plaintiff did not provide defendant with a copy of a consumer rights brochure pre pared by the

Attorney Gene

ral’s office . The wor

k order s pecifie d the wor

k to be done, the ma

terials t o be used , and the t

otal cost of $9,581 to complete the work. The work order was not sig ned by defe

ndant. Instead, defendant merely

advised plaintiff to proceed in accordance with the itemized work order. The job was completed August 1, 2007, and defendant tender ed a check to plaintiff pursuant to the work order plus $100 for a change defendant requested, thereby totaling $9,681. Defendant subsequently stopped pay ment on the check. Plaintiff filed a “claim for a mechanic’s lien” in the r ecorder’s office of B ureau County. On October 17, 2007, plaintiff commenced a suit to foreclose the lien. D efendant filed a response and a moti on for sum

mary judgmen t argui ng that p laintiff

’s failur e to compl

y with sections 20(a) a nd 30 of the

Home Repa

ir and Rem

odeling Act (Home Repair

Act) (81 5 ILCS 513/1 et seq . (West 2006)) barred him from asserting a lien upon her property. Upon he aring argument, the trial court gra nted defendant’s motion, thus deny ing plaintiff any

payment for the work he had done. ANA LYSIS Plaintiff appeals the trial court’s order gra nting defendant’s motion for summary judgment. The sole issue in this appeal is whether plaintiff’s failure to comply with sections 20(a) and 30 of the Home Repair Act (815 I LCS 513/1 et seq . (West 2006)) bars him from

as se rt in g a me ch an ic s’ li en up on de fe nd an t’ s p ro pe rt y. Principle s of statut

ory construction dicta

te that the langua ge of a statute be

given it s plain and ordinary

meaning. First Bank & Trust Co. of O’Fallon v. King, 311 Ill. App. 3d 1053, 1058-3

59, 726 N.E.2d 621, 625 (2000). When the language of the statute is clear and unambiguous, the court should not add exceptions, limitations, or conditions that the legislature did not express. First Bank , 311 I ll. App. 3d at 1059, 7 26 N.E.2d

at 625. A c ourt shoul d interpr et a statu te as a whole so that no term is rendered superfluous or meaningless. Texaco-Cities Service Pipeline Co. v. McGaw , 182 Ill. 2d 262, 270, 695 N.E.2d 481, 485 (1998). The standard of review for both statu tory construc tion and su

mmary judgmen t is de novo

. Swavely v. Freeway Ford Truck Sales, Inc. , 298 I ll. App. 3d 969, 976, 7 00 N.E.2d

181, 187 ( 1998); Sears Roebuck & Co. v. Acceptance Insurance Co. , 342 Ill. App. 3d 167, 171, 793 N.E.2d 736, 739 (2003). We begin by se

tting out the pertinent sections of the Home Repair Act in their entirety

. Section 20 (a) of the Home Re pair Act states: “§20. Consumer rights brochure. (a) F or any contr act over $1,000, any person e

ngaging in the business of home re pair and remodel ing shal l provide

to its customers a c opy

of the ‘H ome Repair: Know Your Consumer Rights’ pamphlet prior to the execution of any home re pair and remodeling contract. The consumer shall sign and date an acknowledg ment form entitled ‘Consumer Rights Acknowledgment Form’ that states: ‘I , the homeowner, have received fr om the contractor a copy

of the pamphlet entitled “ ‘Home Repair: Know Your Consumer Right s.’” T he con tract or or h is or h er repr esent ative shall also s ign and date the acknowledgment form, whic h includes the name and address of the home repai

r and re modeling business. ” 815 I

LCS4 513/20 (West 2006). Section 30

of the Home Repair

Act state s: “§30. Unlawful Acts. It is unlawful for any person engaged in the business of home re pairs and remodeling to remodel or make repairs or charg e for remodeling or repair work before obtaining a signed contract or wor k order over $1,000 and before notifying and se curing the signed acce ptance or rejection, by

the consumer, of the binding arbitration clause and the jury trial waiver clause as requir

ed in Sect ion 15 and

Section 15 .1 [citations] of this Act. This conduct i s unlawfu

l but is not exclusive nor meant to limit other

kinds of me

thods, acts, or pra

ctices that may

be unfai r or deceptive.” 815 ILCS 513/30 (West 2006). Section 5 o f the HRRA

sets fort h the polic

y st atement o f the General Ass embly in enactin g the Home Repair

Act. I t states: “§5. Policy. I

t is the public policy of this State that in order to safeg uard the life, he alth, pro

perty, and publ ic welfa

re of its citizens, the business of home repair and remodeling is a matter affecting the public interest. The Gene ral Assembly re cognizes that improved communications and accurate repre sentations between persons engag ed in the business of making home repairs or remodeling and their consumers will increase consumer confidence, reduce the likelihood of disputes, and promote fa ir and1 While defe ndant ar gues pla intiff wa ived this c ontention , we note that the waiver r

ule is binding on the parties but not on this court. Catholic Charities of the Archdiocese of Chicago v. Thorpe , 318 Ill. App. 3d 304, 311, 741 N.E.2d 651, 655 (2000).

2 We are aware of our supreme c ourt’s holding in MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 888 N.E.2d 54 (2008). This holding, howeve r, is not relevant to our 5 honest pr actice s in that bu siness in th is State.” 815 ILCS 513 /5 (West 2006). It, thus, appears to us that the legislative purpose is to empower the Attorney General and State’s Attorney to corr

ect a potential harmful practice, not to deny an honest and competent workman the fair value of his work nor to give a homeowner a valuable benefit without pa

yin g for it

. In the present case it is undispute d that the

written work orde

r provide d by

plaintiff to defendant was not signed by defendant. It is also undisputed that plaintiff did not provide defendant with a copy

of the consumer rights brochure. Plaintiff acknow ledges that when he began work for defenda

nt, the anticipated costs were over $1,000. Plaintiff, however, asserts that because the Home Repair Act does not provide individual homeowner s with a private right of action to enforc e violations of the H ome Repa ir Act, de fendant

is not entit

led to judg

ment as a matter of law. Plaintiff also alleges that the trial court’s holding improperly implies a judicial repeal of the Mechanics L ien Act (Lien Act) ( 770 IL CS 60/0.01 et seq. (West 2006)). 1 At the time this case was argued, there we re only two I

llinois appellate opinions relevant to our analysis: a previous de cision by this court, Central Illinois Electrical Services, L.L.C. v. Slepian , 358 Ill. App. 3d 545, 831 N.E.2d 1169 (2005), and the F ourth District’s decision in Smith v. Bogard, 377 Ill. App. 3d 842, 879 N.E.2d 543 (2007). 2 Since that time the First District decidedanaly

sis in that i

t dealt sol ely

with the qu

estion of whether the Home R

epair Ac t applied to subcontractors. The court concluded that the Home Repa ir Act does not apply to subcontra ctors who, by virtue of their working for a gener al contractor, did not make “representations” to a homeowner, did not negotiate with a homeowner, did not prese nt written contracts to a homeowner, and were not in a position to accept counter offers. Abrams , 228 Ill. 2d at 291-92, 888 N.E.2 d at 60-61 . The cou rt found t he rema ining iss ue of whe ther subc ontract

ors are able to recover in quantum m eruit was forfeited. Abrams , 228 Ill. 2d at 299-300, 888 N.E.2d at 65.

6 K. Miller Co nstruction

Co. Inc. v

. McGinn is , 394 Ill. App. 3d 248, 913 N.E.2d 1147 (2009). While we are aware that the parties have not had the opportunity to brief and or ally arg ue the impact of the Miller

holding, we discuss the case briefly in footnotes 6 and 7. In Slepian , the plaintiff, Central Illinois Electrical Service s (CIES), entered into an ora l contract with the homeowners to provide electrical wor k as part of a remodeling project. Upon completion of the pr

oject, the Slepian s failed t o pay CIES. CIES su

bsequen tly s ued to for eclose a mechanics’ lien on the Slepians’ property and, in addition, alleged claims for unjust enrichment and quantum m eruit . In response, the Slepians alleged that CIES had violated the HRRA by failing to provide

a writte n contra ct. Thus, the Slepia

ns argu ed that the oral c ontract

was void and therefore could not be the basis of rec overy under a mechanic’s lien. After a bench tria l, the trial court found in CIES’s favor with respe ct to the mechanic’s lien, dismissed CIES’s additional counts as moot, and denied, on the merits, all of the Slepians’ claims pursuant to the Consumer Fraud a nd Dece ptive Bu siness Pra

ctices Act (Consumer Fra ud Act) ( 815 ILCS 505 /10(a) ( West 2006)). On appea

l, we disc ussed CI ES’s clai m that the H ome Repa

ir Act did not apply to it beca use it was a succ esso r con

tractor withou

t a cl earl y d efined pr oject ag ainst

which to itemize3 While we offer no position on this issue, we recognize that an arg ument can be made 7 expenses and reversed that portion of the trial court’s order that relied upon the finding that the Home Repair Act was not applicable. Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. Specifically, we

stated: “The lan guag e of the Act clea

rly and unamb iguously requires any

one engaged in the business of home r epair and remodeling to obtain a signed contract be fore initiating work that will exceed $1,000 in cost. The trial court erred in concluding the Act did not apply in the instant case, a nd the court should now hear any claims tha

t were di smissed on

that basis . Thus, to the extent that the trial court’s rulings relied upon a finding that the Act was not applicable , this cause is reversed and remanded for proceedings consistent with this opinion.” (Emphasis added.) Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at1173. In addition, we affirmed the trial court’s dismissal of the Slepians’ CFA counts acknowledging that the trial court was the proper entity to determine that the charges for the w ork were not unreasonable. Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at1173. We also determined that the outcome o f the pro ceeding s would not have be en diffe

rent had the Slepia

ns been a llowed to proceed on their Consumer Fraud Act cla ims. Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at1173. We believe the holding in Slepian is very narr ow. Specifically, the Slepian court: (1 ) held that the Home Repair Act applies to CIES regardless of the fact that it is a successor contractor, 3that the holding in Abrams , which he ld that the Home Repa

ir Act did not apply to subcont

ractors, overruled our previous holding in Slepian that the H ome Repa ir Act ap plies to CI

ES rega rdless of the fa ct that it is

a succe ssor cont

ractor . The re solution of

this questi on would a

ppear to rest in whether CIES made “re

presentations” to the Slepians, negotiated with the Slepians, presented written contracts to the Slepians, or was in a position to accept counteroff ers. See Abrams , 228 Ill. 2d at 291-92, 888 N.E.2d at 60-61. 8 (2) affirmed the dismissal, on the merits, of the Slepians Consumer Fraud Act c ounts, and (3) reversed and remanded the matter so tha t the trial court could hear any challenges under the Home Repair Act. See Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at1173. We further believe that the limited nature of Slepian is reinforced by Justice Barry’ s dissent, which concentrates entirely on whethe

r CIE S, as a suc cessor c ontract or, knew enough to comply

with the H ome Repair Act or whether the Slepians were in the c lass of consumers the Home Repair Act was intended to protect. See Slepian , 358 Ill. App. 3d at 551-54, 831 N.E.2d at 1175-77. (B arry, J., dissenting

). Ultimat

ely , he would

have fou nd the Home Repair

Act inapp licable. It is f

or these reasons that we find Slepian both factually and le gally disting uishable from the present case. The Bogard

court and the dissent, however, read Slepian much more broadly , appare ntly finding the implicit creation of the use of the Home Repair Ac t as an affirmative defense. Inasmuch as there was no discussion of rights of action or affirmative defe nses or other uses of the HRRA, we would su

ggest such a r

eading is incorr ect. In Bogard

, the plaintiff, Dan Smith Building Services (Smith), entered into an oral contract with the homeowners to build a living-room addition. The Bogards refused to pay the last installment, in the amount of $10,515.85 claimed due for the work performed. Smith filed a9

breach of contract claim and, in addition, alleg ed claims for unjust enrichment and quantum meruit . The Bogards filed a motion to dismiss claiming that Smith violated the Home Repair Act by n ot secur ing a wr itten con tract pr ior to initia

ting con struction

and fail ing to pr

ovide the m with the consumer rights brochure. They claimed that these violations precluded Smith from

re co ve ry. Up on he ar in g a rg um en t, th e t ri al co ur t g ra nt ed th e B og ar ds ’ m ot io n i n i ts en ti re ty, finding that because Smith had failed to comply with the Home Repair Act, he was precluded from recovery

on his breach of contract claim. The court fur ther found that because Smith was unable to recove r under a n action a t law, he was prec luded fr om recovery

under an y e quitable theory as we ll because such a recovery would defeat the entire purpose of the Home Repa ir Act and the pu

blic polic y be hind it. On appea l, Smith arg

ued that a disputed i ssue of w

hether t he Home Re

pair Act applies to him remains, and even if the HRRA does apply to him, he is not precluded from recovery under the theories of unjust enrichment and/or quantum m eruit . The Fourth District rejected Smith’s claim tha t he was me

rely a subcon tractor and thus not require d to comply with the H ome Repa

ir Act. Bogard

, 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548. The cour t also rejected Smith’s claim that he is entitled to recovery under the theories of unjust enrichment and/or quantum meruit

. Bogard

, 377 Ill. App. 3d at 848, 879 N.E.2d at 548. Erroneously relying upon our decision in Slepian , the court stated:

“Because Smith is obligated to comply with the provisions of the Act, and because he failed to do so, he is pre cluded from recovering any

amounts he claims due for work performed. Allowing a contractor a method of rec overy whe n he has breached10 certain provisions of the Act would run afoul of the legislature’s intent of p

rotectin g consu mers, wou

ld rewar d deceptive pra

ctices, and would be violative of public policy. [Citations.] Based on the record before us, we conclude the trial court did not err in granting the Bogards’ motion to dismiss because we find that a

n affirmative mat

ter (Smith ’s violati on of the Act) defeated Smith’s claim for recovery .” Bogard , 377 Ill. App. 3d at 848, 879 N.E.2d at 548. With the above authority in mind, we now tur n to plainti ff’s cla

im that bec ause the

Home Repair Act does not provide individual homeowners with a private rig ht of action to enforce violations of the Home Repair Act, defendant is not entitled to judgment as a matter of law. Plaintiff argues that violations of the Home Repair Act alone do not af firmatively prec lude a contractor from asserting a mec hanics’ lien upon a homeowner’s property . Instead, plaintiff asserts that the homeowner must prove that “the violation, through Section 10(a) of the Consumer Fraud and Deceptive Business Prac tices Act (815 ILCS 505/10(a) (West 2006)), caused her to suffer actual dama ges as a proximate result of the deficiency .” We agree. At the outs et, we note that the Home Repair Act does not contain any language that explicitly or implicitly pr ovides that a violation of the Home Repair Act may be enforced by consumers in a private cause of action. Rather, se ction 35 states that the Attorney Ge neral or the State’s Attorney “ma

y bring a n action in the name of the people of this State against any person to restra in and pre vent any pattern or practice viola

tion of this

Act.” 81 5 ILCS 513/35 (We st 2006). Section 35(b) also states that “[a]ll remedies, penalties, and authority granted” to the11

Attorney Genera l or the Sta

te’s Attorney

“by the Consume

r Fraud and Dec eptive B usiness Practices Act [(815 ILCS 505/1 et seq . (West 2006))] shall be available to him or her for enforcement of this Act.” 815 I LCS 513/35 (West 2006). Moreover, “any violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive B usiness Practices Act.” 815 IL CS 513/35 (West 2006). Here on appeal, defendant does not asse rt that she was unaware of her consumer rights at the time she instructed plaintiff to begin work on her roof. I nstead, she has merely

alleged that plaintiff’s procedural errors in not securing her signature on the written contract pr ior to initiating construction and failing to provide her with the consumer rig hts brochure bar him from asserting a mechanics’ lien upon her property . In the present case , plaintiff asserted a mechanics’ lien against defendant’s property under the Lien Act. The pur pose of the Lien Act is “to requir e a person with an interest in real property to pay for improveme

nts or benefits which have been induced or encouraged by his or her own conduct.” Leveyfilm, Inc. v. Cosmopolitan Bank & Trust, 274 I ll. App. 3d

348, 352, 6 53 N.E.2d

875, 877 ( 1995). Se ction 1 of the L ien Act pe

rmits a lien upon premises where the value or the condition of the prope rty has bee

n increased by

re as on of th e f ur ni sh in g o f l ab or an d m at er ia ls . 7 70 ILC S 6 0/ 1 ( We st 20 06 ). Sp ec if ic al ly, section 1 (a) stat

es in per tinent pa rt: “Any person w ho shall by

any contract or contr

acts, expr ess or implied, or partly expressed or implied, with the owne r of a lot or tract of land, or with one whom the owner has authorized or knowingly pe

rmitted to contract, to improve the lot or tract of land or for the purpose of improving the tract of land, or to manage a12 structur e under c onstruct

ion there on, is know

n under th

is Act as a contractor and has a lien upon the whole of such lot or trac t of land and upon adjoining or adjacent lots or tracts of land of suc h owner ***.” 770 IL CS 60/1(a) (West 2006). As seen a bove, the Lien Act make s no distinction betwe en oral a nd writte n contra cts. Moreover, Illinois law provides that a c ontractor’s right to a mechanics’ lien under the Lien Act derives from the c ontract

or’s per formanc e of the c ontract

. Leveyfilm, Inc. v. Cosmopolitan Bank &Trust , 274 I ll. App. 3d

348, 354, 6 53 N.E.2d

875, 879 ( 1995). Th

us, the pe rtinent qu estion in the pres ent case

regar ding whe ther pla intiff ca n assert a lien against def

endant’ s proper

ty revolves around the validity of the agreement betwee n the two parties and the plaintiff’s performance of that agr

eement. The legal capac ity to foreclose a mechanics’ lien depends upon the validity of the lien. G.M. Fedorchak & Associates, Inc. v. Chicago Title Land Trust Co. , 355 Ill. A pp. 3d 428, 433, 822 N .E.2d 905, 909 (2005 ). The lie n, in turn, must be ba sed upon a valid contract, and in its absence, the lien is unenforcea ble. G.M. Fedorchak

, 355 Ill. App. 3d at 433 822 N.E.2d at 909. In the present case, de fendant

request s that we f

ind the ag reemen t she ente red into w

ith plaintiff invalid be cause pl aintiff f ailed to c omply

with sect ions 20(a ) and 30 o f the Home

Repair Act. While plaintiff’s failure to comply w ith these sections does constitute an unlawful violation under the Home Repair Act, we find that this unla wful viola

tion does n

ot act to a utomatica lly invalidate the agreement betwee n the parties. In coming to this conc lusion, we note once ag ain that the H ome Repa

ir Act is void of any

langua ge whic h serves to invalida

te the pa rties’ agreement when the contra ctor fails to secure a written contract or f ails to provide the13

homeowner with a consumer rights brochure . Instead, the Home Repair Act merely pr ovides that these pr ocedura l errors , along

with the ot

her proc edural e

rrors c ontained

within its pr

ovisions, constitute unlawful violations. 815 IL CS 513/30 (West 2006). These un lawful vi olations, however, do not act to invalid ate an ot herwise enforc eable agree ment. We ha

ve previ ously

held that “ ‘[u]nless

a barg ain nece ssarily

involves a

n illega l act, it is not unenforceable, and if it is later performed in a wa y that involves some slight violation of law, not se

riously injurious t

o the publi c order , the person perf orming may

recove r on his bargain.’ ” Amoco Oil Co. v. Topp ert , 56 Ill. App. 3d 595, 597, 371 N.E.2d 1294, 1296 (1978), quoting 6 Williston, Con

tracts §1 767, at 50 18 (rev. ed. 1938) . The First District stated th is pr in ci pl e m or e b ro ad ly:

“ ‘*** “[W]here a contract could have been per formed in a legal

manner as well as i

n an illegal manne

r, it will not be decl ared voi d because it may

have been performed in an illega l manner, since bad motives ar

e never to be impute d to any

man wher

e fair a nd honest intentions are sufficient to account for his conduct. The rule has been stated to be that if an agree ment can by its terms be pe rformed lawfully, it will be treated as legal, even if performed in an illegal manner ***.” ‘ “ Mani Electrical Contractors v. Kioutas , 243 I ll. App. 3d 662, 666, 611 N.E.2d 1167, 1170 (1993), quoting Meissne r v. Carav

ello , 4 Ill. App. 2d 428, 431-32, 124 N.E.2d 615, 616-17 (1955), quoting 12 Am. Jur., Contracts §153, at 647. He re , t he pa rt ie s e nt er ed in to an or al ag re em en t t o r ep ai r d ef en da nt ’s ro of

. S pe ci fi ca ll y,14

defendant sought out plaintiff and asked him to submit a bid to replace the roof . Plaintiff tendered a written, itemized work order to defenda nt for her consideration. Defendant advised plaintiff to proceed in accordance w ith the itemized work order. Plaintiff completed the job and defendant tendered a chec k to defendant for the amount stated in the work order plus $100 for a change defendant had r

equested, thereby

totaling $9,681. Defendant subsequently stopped payment on the che ck. While plaintiff’s failure to provide defendant with a copy of the consumer rights brochure and secur e a written contract does constitute an unlawful violation under the Home Repair Act, the underly ing bargain to repair def

endant’s roof did not provide for or requi re any violation o f law. Th

us, we find that the underly ing agreement betwee

n the parties

wa s v al id an d p la in ti ff ’s pr oc ed ur al vi ol at io ns re la ti ve to th at ag re em en t d o n ot ba r r ec ov er y. Defendant is incorrect in asserting that suc h an interpretation renders sections 20(a) and 30 of the H ome Repa

ir Act me aningle ss. While the Home Repa

ir Act doe s not prohi

bit a contractor from r

ecover y in the even t a contr actor f ails to sec ure a wr itten con tract or fails to provide t he homeow

ner with t he consu mer rig hts broch ure, it do es exact p enalties for thes e violations. Specifically, the Home Repa ir Act states that the Attorney General may

seek penalties against the contractor in case of violation. 815 IL CS 513/35 (West 2006). More important ly f or our considera

tion, howe

ver, the Home Repa

ir Act pla inly and unamb iguously provides that “any

violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815 I LCS 513/35 (West 2006). Section 10(a) of the Consumer Fraud Act provides defendant with the rig ht to bring an action against plaintiff for any actual d amage s she suff

ered as a result o f any

violation o f the Consu

mer Fra ud Act. 81 5 ILCS 505/10(a) (West 2006). It is through sec tion 10(a) of the Consumer Fraud Act that plaintiff can4 While some may arg ue that our position would require homeowners to engage in dual litigation in that they would have to c ome back to court after a mechanics’ lien has been secured against their pr

operty, this rea soning is

simply incorre ct in that i

t ignore s the fact that tria l courts can hear both a contractor’s mec hanics’ lien claim and a homeowner’s Consumer Fra ud Act claim in the same hearing. We note that this ty pe of combined hearing is exactly what occurred in Slepian . See Slepian , 358 I ll. App. 3d at 550, 83 1 N.E.2d a

t1173. Mor

eover, t he Home Repair Act is void of any condition restricting the time a homeowner can bring a Consumer Fraud Act action. I

nstead, the Home Repair Act simply provides that “any

violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive B usiness Practices Act.” 815 IL CS 513/35 (West 2006).

5 The authority re lied upon by the dissent which illustrates situations where c ourts have allowed a defenda nt to use a

plaintiff ’s violati on of othe

r acts, s uch as the Motor Veh

icle Reta il Installment Sales Act (Sales Act) (815 I LCS 375/1 et seq . (West 2006)), as an affirmative 15 recove r for an y a ctual da mages she suffe

red as a result of plaintiff ’s failur e to compl

y with sections 20(a) a nd 30 of the

Home Repa

ir Act. 4 This court, in Slepian , has previously re cognized this fact by aff

irming the trial court’s dismissal of plainitff’s Consumer Fraud Act claims on the

me ri ts , n ot as a m at te r o f p ro ce du ra l i na pp li ca bi li ty. Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at1173. It is clear based on a

reading of both the Home Repair Act and the Consumer Fraud Act that the legislature did not intend to provide homeowners with a private rig ht of action under the Home Repair Act. Nor do we believe the legislature intended to allow homeowners to use the Home Repa

ir Act as an affi rmative d efense to mecha nics’ lie ns. 5 To hold otherwise would resu ltdefense against a plaintiff’s claim eve n though the acts limit enforcement to the Attorney General or State’s Attorney is distinguishable and simply has no bearing on this appeal. These cases are all disting uishable on the g rounds tha

t they deal with entirely differe nt factual scena

rios, and with entirely diffe

rent bodies of law.

6 We note that on August 10, 2009, the First District in Miller denied a builder’ s claims for breach of contract and lien f oreclosure due to the builder’s failure to comply with section 30 of the Home Repair Act. Miller , 394 Ill. App. 3d at 253-54, 913 N.E.2d at 1152. For the reasons stated above, we disagree with this holding. The Miller court he ld, however, that the equit able remedy of quantum m eruit remained available to the builder. Miller , 394 Ill. App. 3d at 265, 913 N.E.2d a t 1161. We of

fer no op inion on thi s specif ic issue, as we ha

ve alre ady

found tha

t a valid contract exists in the present case. 16 in a judicial repeal of the Lie n Act. In coming to this conclusion, we reject the holding announced in Bogard

, as we believe it was incorrectly decided. 6 We have already stated that we believe the holding in Slepian is extremely narrow a nd both factually and le gally disting uishable. However, to the extent that one accepts the broad interpre tation of Slepian , as both the Bogard court an d the disse

nt does, we would f

ind that Slepian was incorrectly decided. Moreove r, we re ject the d issent’s c ontention

that our holding he

re on app eal “de

viate[s] from the rationale” in our previous decision in Route 50 Auto Sales Inc. v. Muncy , 331 Ill. App. 3d 515, 771 N.E.2d 635 (2002). Slip op. at 6. Initially , we note that our decision in Muncy did not even deal with the Home Repair Act. I nstead, the defendants in Muncy filed a motion to dismiss plaintiff’s complaint, asserting that plaintiff was precluded from enfor cing a contract because it did not meet the requirements of the Sales Act (815 I LCS 375/1 et seq . (West 2006)).17

It is on this basis that we find Muncy factually disting

uishable from the instant case. We would, however, also note that while we believe the holding in Muncy is inapplicable, the court specifically he ld:

“[F]ailure to comply with the provisions of the [Sales Act] does not render the contract void or unenforc eable. [Citation.] The remedy for noncompliance with the Sales Act is limited to the penalties provided in the statute.” Muncy , 331 Ill. App. 3d at 517, 771 N.E.2d at 637. The quote above c learly

illustrate s that Muncy

does not stand for the proposition that the Sales Act can be used to void an existing legal contract. Instead, the contract r emains valid, but the noncomplying pa

rty is subject to the penalties provided in the sta tute. Muncy , 331 Ill. App. 3d at 517, 771 N.E.2d at 637. To this extent, we believe the Muncy court’s interpretation of the Sales Act is con sistent wit

h our inte rpreta tion of the

Home Repa

ir Act. Based upon a review of the rec ord, it appears that the failure to provide defenda nt with a copy of the c onsumer rights brochure and to secure a signature on the itemized work order were oversights on the part of plaintiff grounded in ig norance of the statute. The public welfare which these sections were calculated to protect was not injured and defendant received her ne w roof. All elements for a valid contract existed, including offer, a cceptance and consideration. None of these terms provided for or required a violation of law. Thus, we find that the oral agreement be tw ee n t he pa rt ie s d oe s c on st it ut e a va li d o ra l c on tr ac t u nd er Ill in oi s l aw . C on se qu en tl y, we hold that plaintiff’s subsequent performance of that ag reement creates a rig

ht to a mechanics’ lien under the Lien Act. See Leveyfilm , 274 Ill. App. 3d at 354, 653 N.E.2d at 879. Bec ause the7 The use o f “void” in section

15.1(c)of the Home Repair Act does not act to void a val id contract. Section 15.1 deals with situations where the contractor pre sents the homeowner with a written o ffer c ontaining

provision s where

by t he homeow

ner ag rees to s ubmit all di sputes to arbitration and waive her right to a trial by jury. See 815 I

LCS 513/15.1 (West 2006). Section 15.1(b) r equires the contr actor to give the homeowne

r the “option of ac cepting or reje cting both th e ar bi tra ti on c lau se a nd t he j ury t ria l wa iv er c lau se. ” 81 5 ILCS 513 /1 5.1 (b) (W est 200 6). It also requires that the homeowner sign “her name and write the word ‘accept’ or ‘reject’ in the margin next to eac

h *** clau se.” 815 IL CS 513/15.1( b) (West 20 06). Section 15.1( c) mere ly states: “Failure to advise a consumer of the pre sence of the binding arbitration clause or the jury trial waiver clause or to secure the ne cessary acceptance, rejection or c onsumer signature as provided in this Section shall render null and void each clause that has not been accepted or rejected and signed by the consumer .” ( Emp has is add ed. ) 81 5 ILCS 513 /1 5.1 (W est 200 6). In using section 15.1 to reject the builder’s claim that section 30 does not bar or al contracts, the Miller court ha s misread

and incor rectly applied s ection 15 .1. Had the legis lature in tended to allow a contractor’s “unlawful violation” to be used to void a valid contra ct, it could have included such language in section 30, as it did in section 15.1. 18 Home Repa

ir Act is void of any

langua ge whic h serves to invalida

te the pa rties’ a greement, defendant cannot now use the Home Repair Act to bar plaintiff from asserting this lien. 7 However, if defendant has suffer ed any a ctual damages as a result of plaintiff’s unlawful violations, the statute has created a cause of ac tion for her under section 10(a) of the Consumer Fraud Act. See 815 ILCS 513/35 (West 2006); 815 ILCS 505/10(a) (West 2006). Moreover, the Attorney Gene

ral or the State’s Attorney is free to seek penalties against plaintiff for his unlawful19

violations

. For the f orego ing reasons, we reverse the judgment of the B ureau County circ uit court and remand t he matter for fur ther pro ceeding s. Reversed and remanded. Filed January 14, 2010 (2 nd correction) No. 3--08--0237, Fandel v. Tiffany Allen

JUSTICE SCHMIDT, specially concurring:

I concur, but write separately to point out some additional reasons as to why I believe that Justice McDade's construction of the Home Repair Act is the correct one. Nowhere does the Home Repair Act say that a contract that does not strictly comply with the statute is void or otherwise unenforceable. The section of the statute titled "Enforcement" contains no such language. 815 ILCS 513/35 (West 2006). It does not state that one who fails to get a signature on a written work order and/or hand out a consumer rights brochure cannot collect for his or her work. It does say that the Attorney General may take action against the contractor and it also points out that the homeowner has an action under the Consumer Fraud Act. See 815 ILCS 513/35 (West 2006). This statute is in derogation of the common law and must be strictly construed. Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 809 N.E.2d 1248 (2004).20

Consequently, applying the rules of statutory construction, I believe that expressio unius est exclusio alterius applies. At common law, a contract that is otherwise legal is not unenforceable simply because it is performed in an illegal manner as long as the subject matter is legal. Federal Land Bank of St. Louis v. Walker , 212 Ill. App. 3d 420, 571 N.E.2d 242 (1991). There is nothing inherently illegal about contracting to put a new roof on a house. For example, a contract to build a home or an addition to a home may violate municipal ordinances if done without the requisite permits. Nonetheless, the violation of the law in performing the contract does not render the contract unenforceable. Meissner v. Caravello , 4 Ill. App. 2d 428, 124 N.E.2d 615 (1955); Lavine Construction Co. v. Johnson , 101 Ill. App. 3d 817, 428 N.E.2d 1069 (1981); Mani Electrical Contractors v. Kioutas , 243 Ill. App. 3d 662, 611 N.E.2d 1167 (1993). There are three appellate court cases to date dealing with the Act. Slepian was decided in 2005. Central Illinois Electrical Services, L.L.C. v. Slepian , 358 Ill. App. 3d 545, 831 N.E.2d 1169 (2005). A close reading of Slepian discloses that the decision states the Home Repair Act is applicable in a mechanics lien action. It does not even discuss the "So, what?" of that statement. It does not hold that the failure to strictly comply with the Home Repair Act renders a contract for home repair or remodeling unenforceable.21

Smith v. Bogard

is an interesting case. Smith v. Bogard , 377 Ill. App. 3d 842, 879 N.E.2d 543 (2007). There was an oral contract to build an addition to a home for "'$20,000 or less.'" Smith v. Bogard , 377 Ill. App. 3d at 843. At some point before construction was completed, the homeowner paid the contractor $15,000. Upon completion, the contractor gave the homeowner a final bill for approximately $25,500 (25% more than the high estimate). The appellate court held that the contractor could not recover the additional $10,500 allegedly due because it failed to comply with the provisions of the Home Repair Act. Reasonable people can look at the Bogard case and decide that it seems like a very fair result based on a contractor attempting to overreach. One has to wonder whether the appellate court would have reached the same result had the homeowner paid nothing up front or had the homeowner countersued for the return of the $15,000 paid up front. After all, if the contract is void and unenforceable because of a violation of the Home Repair Act, then the homeowner owed nothing, as the homeowner alleges she owes here. The Bogard court rejected the contractor's claims based on breach of contract, unjust enrichment and quantum meruit . The contractor did not attempt to plead a cause of action under the Mechanics Lien Act. I might add that the result could have been the same even without applying the Home Repair Act by virtue of the defenses available to the homeowner under the Mechanics Lien22

Act. 770 ILCS 60/13 (West 2006). The court in the Miller Construction case, in my opinion, got the right result with the wrong analysis. K. Miller Construction Co. v. McGinnis , 394 Ill. App. 3d 248, 913 N.E.2d 1147 (2009). I agree with Justice Wolfson that it makes no sense to deny contract damages on the basis that the contract violates public policy and then, in the next breath, to award equitable relief. K. Miller Construction Co. , 394 Ill. App. 3d at 267, 913 N.E.2d at 1162-63 (Wolfson, J., dissenting). However, Justice Wolfson further asserts that failing to perform home repair work in strict compliance with the Home Repair Act renders a contract to do so unenforceable. K. Miller Construction Co. , 394 Ill. App. 3d at 267-68, 913 N.E.2d at 1162 (Wolfson, J., dissenting). He concludes that the legislature intended this result without any analysis to support that conclusion. I submit that this conclusion that performing a contract in violation of the law renders the contract void and unenforceable flies in the face of the contract law discussed above and set forth and summarized nicely in Mani Electrical Contractors v. Kioutas , 243 Ill. App. 3d 662, 611 N.E.2d 1167 (1993). Justice Wolfson's dissent fails to acknowledge that it was not the legislature that said any violation of the Home Repair Act, ipso facto , renders the contract unenforceable; it was some judges. In an ironic twist, Justice Wolfson cites Chief23

Justice John Marshall in support of his judicial restraint argument. K. Miller Construction Co. , 394 Ill. App. 3d at 268, 913 N.E.2d at 1163 (Wolfson, J. dissenting). There is nothing in the Home Repair Act to lead one to believe that the legislature intended it to be a giant legal "Gotcha!" permitting a homeowner to improve his or her house at the expense of an honest contractor. As pointed out by Justice McDade, the enforcement section allows the Attorney General to take action and gives the homeowner an action under the Consumer Fraud Act for any damages the homeowner might have sustained. Apparently some courts fear that unless a violation of the Home Repair Act renders a contract for home repair unenforceable, homeowners will not be protected. Not so. In a mechanics lien action, the contractor still must prove faithful performance of a contract or an excuse for nonperformance. 770 ILCS 60/11 (West 2006). Poor performance, nonperformance, and/or fraud in the inducement will defeat or reduce recovery by the contractor in a mechanics lien action. 770 ILCS 60/13 (West 2006). The same is true in a common law contract action. It is apparent that those who favor the Bogard construction of the Home Repair Act feel such a construction is necessary to "put teeth" in the Act. Thirty-five years ago, the Peoria police department had a police dog named Prince. Prince had teeth. Real sharp ones. Powerful jaws, too. The dog was to use those24

teeth to bite and subdue criminals who were fleeing or fighting police. The problem was, Prince bit virtually anybody and everybody, except his handler. Prince bit as many officers and citizens as he did combative criminals. In some instances, we are not talking about just drawing blood. There were gaping holes, missing tissue, and broken bones where human flesh used to be. After paying out a small fortune in personal injury settlements, the city decided it was time to retire Prince and pay for well-trained police dogs that use their teeth only as intended. I submit the Bogard construction of the Home Repair Act, in addition to being unsupported by the statutory language, has created another Prince. There is no need to unleash a dog that bites indiscriminately. If there is fraud or failure to perform, the contractor's recovery under the Mechanics Lien Act will either be denied or reduced, depending on the facts of the particular case. The dissent believes that anything other than strict compliance with the Act means no recovery for the work performed. In the real world, this can mean financial hardship or even ruin for an honest, unsophisticated, small-time contractor who expends great time and materials on a project. Nothing in the language of the Home Repair Act supports this draconian interpretation. Justice Wolfson also points out the obvious: the contractor25

can protect himself by simply having the homeowner sign the work order and handing him/her a consumer rights brochure. K. Miller Construction Co. , 394 Ill. App. 3d at 267, 913 N.E.2d at 1162-63 (Wolfson, J., dissenting). Absolutely a true statement, as far as it goes. However, the evil the Home Repair Act targets is not the failure to satisfy some societal need for more signatures or more brochures. It is dishonest contractors. The legislature chose not to say that failure to secure a signature or hand a homeowner a brochure means the homeowner gets a free roof or addition. It did provide for other penalties. Courts should not ignore long-standing contract principles absent explicit statutory language to the contrary. JUS TICE LYTTON , dis senti ng: I d issen t. I believe that defendant has the right to raise plaintiff’s noncompliance with the Home Repair and Remodeling Act as an affirmative defense; furthermore, plaintiff’s noncompliance with the Act precludes him from foreclosing on his mechanics’ lien. I In 2000, the Illinois General Assembly created the Act because "the business of home repair and remodeling is a matter affecting the public interest." 815 ILCS 513/5 (West 2006). The purpose of the Act is "to safeguard the life, health, property and public welfare of [Illinois’s] citizens" through "improved communications and accurate representations between pe rso ns engaged in the26

business of making home repairs or remodeling and their consumers" in order to "increase consumer confidence, reduce the likelihood of disputes, and promote fair and honest practices." 815 ILCS 513/5 (West 2006). To e ffectuate its purpose, the Act imposes certai n requirements on individuals and businesses involved in home repair and remodeling. See 815 ILCS 513/20 and 30 (West 2006). Section 20 of the Act requires that those engaged in the business of home repair and remodeling provide to their customers a copy of a pamphlet that explains consumers’ rights prior to the execution of any home repair or remodeling contract. 815 ILCS 513/20(a), (b) (West 2 006). If the contract is for over $1,000, the homeowner must sign a form acknowledging tha t he rece ived a copy of the pamphlet, and the contractor must retain the form. 815 ILCS 513/20(a) (West 2006). Additionally, section 30 of the Act requires that contractors obtain a signed written contract or work order for work over $1,000. 815 ILCS 513/30 (West 2006). Section 35 addresses enforcement of the Act: "The Attorney General or the St ate’s Attorney of any county in this State may bring an action in the name of the people of this State against any person to restrain and prevent any pattern or practice violation of this Act." 815 ILCS 513/35(a) (West 2006). The Act contains no

e xpress provision conferring upon individuals, other than t h e Attorney General or State’s Attorneys, a cause of action to enforce27

the Act. See 815 ILCS 513/35 (West 2006). II The issue in this case is whether homeowners can raise a contractor’s violation of the Act as an affirmative defense when a contractor is suing a homeowner. Three Illinois courts have said that they can. See K. Miller Construction Co., Inc. v. McGinnis , 394 Ill. App. 3d 248, 913 N.E.2d 1147 (2009); Smith v. Bogard , 377 Ill. Ap p. 3d 842, 879 N.E.2d 543 (2007); Central Illinois Electrical Services, L.L.C. v. Slepian , 358 Ill. App. 3d 545, 831 N.E.2d 1169 (2005). In McGinnis , the First District held that a contractor who did not comply with the Act was precluded from recovering on his mechanics’ lien foreclosure and breach of contract claims. McGinnis , 394 Ill. App. 3d at 253, 913 N.E.2d at 1152. In Bogard , the Fourth District held that a contractor’s violation of the Act precluded him from bringing a breach of contract, unjust enrichment or quantum meruit action. See Bogard , 377 I ll. App. 3d at 847-48, 879 N.E.2d at 548. In Slepian , this court ruled that a homeowner can raise a contractor’s violation of the Act as an affirmative defense to a suit to foreclose a mechanics’ lien. Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. However, Justice McDade finds that beca use defendant had no private right of action to enforce the Home Repair and Remodeling Act, sh e cannot raise the Act as an affirmative defense. I28

disag ree. Courts analyzing similar consumer protection statutes have found that a defendant can raise a violation of a statute as an affirmative defense even though the statute does not provide a private right of action. In an analysis of this exact issue under the Motor Vehicle Retail Installment Sales Act (Sales Act) (815 ILCS 375/1 et seq. (West 1998)), this court, in a unanimous decision, ruled that a defendant could raise a plaintiff’s violation of the Sales Act to defend against a plaintiff’s claim even though the statute limits enforcement to the Attorney General or State’s Attorney. Route 50 Auto Sales, Inc. v. Muncy , 331 Ill. App. 3d 515, 516-17, 771 N.E.2d 635, 636 (2002). The court reasoned that "the defendants did not file an action to enforce the provisions of the [Sales] Act in this

case. Instead, the defendants are raising the violation of the [Sales] Act as a defense against plaintiff’s action." Muncy , 331 Ill. App. 3d at 517, 771 N.E.2d at 636. Thus, the penalty provision of the Sales Act can be used as an affirmative defense to

a plaintiff’s claim for recovery. Muncy , 331 Ill. App. 3d at 517, 771 N.E.2d at 637. Similarly, regulatio ns a dopted by the Department of Housing and Urban Development (HUD) pursuant to the National Housing Act (12 U.S.C. §1701 et seq. (2006)) may be raised as an affirmat iv e defense in foreclosure actions even though the regulations do not create a private right of action. See Wells Fargo Home Mortgage,29

Inc. v. Neal , 398 Md. 705, 922 A.2d 538 (2007); Prudential Insurance Co. of America v. Jackson , 270 N.J. Super. 510, 637 A.2d 573 (1994); Fleet Real Estate Funding Corp. v. Smith , 366 Pa. Super. 116, 5 30 A. 2d 919 (1987); Bankers Life Co. v. Denton , 120 Ill. App. 3d 576, 458 N.E.2d 203 (1983); Cross v. Federal National Mort gage Ass’n , 359 So.2d 464 (Fla. App. 1978); Federal Natio na l Mortgage Ass’n v. Ric ks , 8 3 Misc. 2d 814, 372 N.Y.S.2d 485 (N.Y. Sup. 1975). The court in Denton stated: "The legislative purpose of the National Housing Act *** is to assist in providing a decent home and a suitable living environment for every American family. Thus, the primary beneficiaries of the act and it s implementing regulations are those receiving assistance through its various housing programs. This wou ld include the defendants as mortgagors of a H.U.D. insured mortgage. Therefore, in order to effectively insure that the int erests of the primary beneficiaries of the H.U .D . mortgage servicing requirements are being protected, mortgagors must be allo wed to raise noncompliance with the servicing requirements as a defense to a foreclosure action." Denton , 120 Ill. App. 3d at 579, 458 N.E.2d at 205. To allow a mortgagee to foreclose on a home despite its violation of HUD regulations "would be to permit it to subvert the very goal30

the program was established to achieve and to make a mockery of the National Housing Act." Ricks , 83 Misc. 2d at 825, 372 N.Y.S.2d at 496. Likewise, many states have held that a defendant can raise a plaintiff’s failure to comply with the Farm Credit Act of 1971 (FCA) (12 U.S . C. §2001 et seq. (2006)) as a defense in a f ore closure proceeding even though the Act does not create a private right of action. See State ex rel. Farm Credit Bank of Spokane v. District Court of the Third Judicial District , 267 Mont. 1, 881 P.2d 594 (1994); Farm Credit Bank of Texas v. Sturgeon , 93- 1536 (La. App. 3 Cir. 6/1/94); 640 So.2d 66 6; Burgmei er v. Farm Credit Bank of St. Paul , 499 N.W.2d 43 (Minn. App. 1993); Western Farm Credit Bank v. Pratt , 860 P.2d 376 (Utah App. 1993); Lillard

v. Farm Credit Services of Mid-America, ACA , 831 S.W.2d 626 (Ky. App. 1991); Federal L and B ank of St. Paul v. Overboe , 404 N.W.2d 445 (N.D. 1987). The FCA was created to protect borrowers "t o

ensure that they re ceived fair treatment, due process and every realistic opportunity to avoid liquidation and stay in business." Redd v. Federal Land Bank of St. Louis , 851 F.2d 219, 222 (8th Cir. 1988). Allowing defendants to raise the FCA as a de fense is necessary to achieve the statute’s goal of advancing agricultural development and protecting farmers. See Burgmeier , 499 N.W.2d at 50; Lillard , 831 S.W.2d at 629; Overboe , 404 N.W.2d at 449. In Production Credit Ass’n of Fargo v. Ista , 451 N.W. 2d 11831

(N.D. 1990), the North Dakota Supreme Court explained: "There is a vast dif ference between allowing use of a regulatory violation as a 'shield' in the form of an equitable defense to foreclosure, and allowing its use as

a 'sword' to create a state-based tort action for recovery of d amag es where no direct private right of action for damages is recognized." Ista , 451 N.W.2d at 125. Applying this reasoning to the Home Repair and Remodeling Act, I find the analysi s o f the North Dakota Supreme Court compelling. Although a statute may in hib it its use as a private right of act ion, it may be employed as a defense against a violation of statutory requirements. Considering the intent and purpose of the Home Repair and Remodeling Act, I find no reason to deviate from the rationale in

our previous holding in Muncy . Like the Sales Act, the Home Repair and Remodeling Act was created to ensure that businesses treat

consumers fairly and honestly. Compare Bogard , 377 Ill. App. 3d at 845, 879 N.E.2d at 546 (purpose of Home Repair and Remodeling Act is to promote fair and honest practices), with Chrysler Credit Corp. v. Ross , 28 Ill. App. 3d 165, 1 68, 28 N .E.2d 65, 68 (1975) (purpose of retail installment sales statutes is to protect

consumers from fraud, deception and other unscrupulous practices). Allowing a contractor to sue a homeowner without regard to whether32

the contractor complied with the Act would defeat the Act’s purpose

o f p rotecting consumers and render the Act meaningless. See Bogard , 377 Ill. App. 3d at 848, 879 N.E.2d at 548 (refusing to allow contractor to recover under theories of unjust enrichment and quantum meruit because "[a]llowing a contractor a method of recovery when he has breached certain provisions of the Act would

run afoul of the legislature’s intent o f pr otecting consumers, would reward deceptive practices, and would be violative of public policy"). Although the legislature has restricted the use of the Act as

an offensive tool, it has not prohibited a homeowner from using the A ct as a defense against a contractor who seeks payment on a contract that the statute makes unlawful. Thus, a homeowner may raise a contractor’s failure to comply with the requirements of the Act as an affirmative defense. III Justice McDade and Justice Schmidt in co rrectly hold that plaintiff’s failure to comply with the provisions of the Act did not preclude him from foreclosing on his mechanics’ lien. The legal capacity to foreclose a mechanics’ lien depends on the valid ity of the lien. G.M. Fedorchak & Associates, Inc. v . Chicago Title Land Trust Co. , 355 Ill. App. 3d 428, 433, 822 N.E.2d 905, 909 (2005). The lien must be based on a valid contract; if it is not, the lien is unenforceable. G.M. Fedorchak , 355 Ill. App.33

3d at 433, 822 N.E.2d at 909. When a contract does not comply with the Act, it is invalid and cannot form the basis of a b reach of contract action or an action to foreclose a mechanics’ lien. See McGinnis , 394 Ill. App. 3d at 253-54, 913 N.E.2d at 1152; Bogard , 377 Ill. App. 3d 842, 879 N.E.2d 543; Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. In McGinnis , the McGinnises orally ag ree d to pay Miller, a contractor, $187,000 for remodeling work in 2004. In 2005, the project expanded significantly and the McGinnises orally agreed to pay over $500,000. In 2 006, Mille r completed the project. The McGinnises paid Miller $177,580.33 but refused to p ay any more. Miller filed a complaint against the McGinnises, alleging that he

was entitled to (1) a lien on the McGinnis es’ proper ty for over $300,000, (2) recover the unpaid balance based on breach of the oral contract, and/or (3) com pens ation for his labor, materials, and services on a quantum meruit theory. The McGinni ses f iled a motion to dismiss, arguing that Miller could not recover because he

never pro vided a written contract as required by the Act. The trial court granted the McGinnises’ motion to dismiss. The appellate court affirmed the trial court’s dismissal of Miller’s foreclosure and breach of contract claims, stating:

"We find no merit to Miller’s contention that h i s lien foreclosure clai m in c ount I and his breach of contract claim in count II can stand in the face of the34

plain language of the Act that bars recovery for wo rk that exceeds $1,000 on a residenc e wi thout a written contract or work order." McGinnis , 394 Ill. App. 3d at 253, 913 N.E.2d at 1152. The court concluded, "In the absence of a written contract or work order, Miller’s time and materials oral contract is unenforceable under the Act." McGinnis , 394 Ill. App. 3d at 253, 913 N.E.2d at 1152. In Bogard , a contractor provided homeowners with an oral estima te of "$20,000 or less" for a room addition but did no t provide a written contract or a consumer rights pamphlet. The homeown ers filed a motion to dismiss the contractor’s breach of contract action against them, cla imin g that the contractor was precluded from recovery. The trial court agreed, and the appellate court affirmed the tr ial co urt’s decision, stating: "We find the Act applies to Smith, that Smith violated several provisions of theAct, and those violations support the dismissal of his breach-ofcontract claim. " Bogard , 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548. In Slepian , a contractor filed a complaint to foreclose a mechanics’ lien against homeowners, a lleg ing that they failed to pay for labor and materials the contractor provided under an oral contract for work on their property. The homeowners raised an affirmative defense, alleging that because the contractor violated35

the Act, the oral contract for services was void and, therefore, could not form the basis of recovery under a mechanics’ lien. The trial court found in favor of the contractor. This court disagreed with the trial court’s decision, stating:

"The language of the Act clearly and unambiguously requires anyone eng aged in the business of home repair and remodeling to obtain a signed contr act before initiating work that wi ll exceed $1,000 in cost. The trial court erred in concluding the Act did not apply in the instan t case , and the court should now hear any claims that were dismissed on that basis." Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. We reversed and remanded the trial court’s decision. Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. Here, plaintiff filed a suit to foreclose his mechanics’ lien against defendant. Defendant filed an answer to the co mplaint, alleging that she stopped payment on her check to plaintiff because his work was defective. She further claimed that defendant violated the Home Repair and Remodeling Act by failing to provide her with a consumer rights pamphlet and obtain a signed written contract from her. There is no question that defendant’s failure to provide defen dant with a consumer rights pamphlet and obtain a sign e d written contract prior to performing work on defendant’s home36

violated the Act. See 815 ILCS 513/20(a), 30 (West 2006); McGinnis , 394 Ill. App. 3d at 253, 913 N.E.2d at 1152; Bogard , 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548; Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. Nevertheless, Justice McDade contends that these violations were merely "procedural errors." I disagree with this characterization. The Home Repair and Remodelin g A ct is written in mandatory terms requiring contractors to provide customers with a copy of a

consumer rights pamphlets and obtain a si gned written contract before beginning work. See 815 ILCS 513/20(a), 30 (West 2006). A contractor’s failure to obt ain a written contract prior to performing work over $1,000 is "unlawful." 815 ILCS 513/30 (West 2006). Nothing in the Act excuses a contractor’s failure to strictly abide by the Act’s terms. Because defendant did not sign the work order or any othe r written contract with plaintiff, there is no valid contract between plaintiff and defendant that could form the basis for plaintiff’s mechanics’ lien. See Bog ard , 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548; Slepian , 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. Thus, since plaintiff’s mechanics’ lien is not based on a valid contract, it is unenforceable. See G.M. Fedorchak , 355 Ill. App. 3d at 433, 822 N.E.2d at 909. The trial court properly entered summary judgment in favor of defendant. IV8 Those statutes are Residential Improvement Loan Act (815

ILCS 135/6 (West 2006)); Credit Card Issuance Act (815 ILCS 140/8 (West 2006)); Unsolicited Credit Card Act of 1977 (815 ILCS 150/4 (West 2006)); Copper Purchase Registration Law (815 ILCS 325/8 (West 2006)); Fraudulent Sales Act (815 ILCS 350/11 (West 2006) (created to prevent fraud and misrepresentations often associated with "going out of business" and "removal sales" (815 ILCS 350/2 (West 2006))); Motor Vehicle Retail Installment Sales Act (815 ILCS 375/23 (West 2006) (intended to protect consumers from fraud, deception and other unscrupulous practices (see Ross , 28 Ill. App. 3d at 168, 28 N.E.2d at 68)); Opthalmic Advertising Act (815 ILCS 385/8 (West 2006) (purpose is to "require advertisers of ophthalmic materials to tell the whole truth to the general public" for the public’s protection, safety, and health (815 ILCS 385/1 (West 2006))); Platinum Sales Act (815 ILCS 395/7 (West 2006)); Resident Alien Course Act (815 ILCS 400/4 (West 2006)); Retail Installment Sales Act (815 ILCS 405/30 (West 2006) (intent 37 The majority’s decision in this case has far-reaching implications that will affect not only the Home Rep air an d Remodeling Act but at least 18 other Illinois consumer protection statutes that conta in enforcement provisions like the one in the Act, which allow only the Attorney General and/or State’s Attorney to bring an action to restrain violations. 8 Until now, this court,is to make borrowers more aware of consequences of incurring

debts (see Garza v. Chicago Health Clubs, Inc. , 347 F.Supp. 955, 962-63 (N.D. Ill. 1972))); Second-Hand Watch Act (815 ILCS 410/5 (West 2006)); Transportation Ticket Fraud Act (815 ILCS 415/3 (West 2006)); Travel Promotion Consumer Protection Act (815 ILCS 420/7 (West 2006)); Used Lubricant Act (815 ILCS 435/2 (West 2006)); Home Repair Fraud Act (815 ILCS 515/4 (West 2006) (goal is to "prohibit and prevent knowing use of fraud to induce an unwitting homeowner to actually enter into an agreement for home repair" ( People v. Flynn , 341 Ill. App. 3d 813, 830, 792 N.E.2d 527, 542 (2003))); Internet Caller Identification Act (815 ILCS 517/15 (West 2008)); Job Referral and Job Listing Services Consumer Protection Act (815 ILCS 630/12 (West 2006)); Motor Vehicle Leasing Act (815 ILCS 636/75(1) (West 2006) (intended to "promote the understanding of vehicle leasing in this State by providing for the disclosure of lease obligations to consumer lessees") (815 ILCS 636/5 (West 2006))). 38 like countless others, has held that a consumer can raise a violation of such consumer pr otec tion statutes as an affirmative defense to a plaintiff’s claim for recovery. See Muncy , 331 Ill. App. 3d at 517, 771 N.E.2d at 637; Slepian , 35 8 Ill. App. 3d at 550, 831 N.E.2d at 1173. Consumer protection statutes are to be liberally construed to ef fectuate their purpose of protecting consumers. See Price v .39

Philip Morris, Inc. , 219 Ill. 2d 182, 233-34. 848 N.E.2d 1, 32 (2005). Until today, this court has enforced the intent of these statutes in decisions such as Muncy and Slepian . The majority’s opinion in this case, which precludes defendant from raising a violation as a defense, is a narrow, restrictive interpretation of the Act that substantially erodes the effectiveness the statutory scheme of Illinois’s consum er protections. For these reasons, I dissent.