Fandel v. Allen

No. 3-08-0237
______________________________________________________________________________
Filed January 14, 2010 CORRECTION
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2010
______________________________________________________________________________

DAVID W. FANDEL, Individually ) Appeal from the Circuit Court
and d/b/a Fandel Construction, ) of the 13th Judicial Circuit
) Bureau County, Illinois,
Plaintiff-Appellant, )
) No. 07-CH-91
v. )
)
TIFFANY ALLEN, ) Honorable
) Cornelius J. Hollerich,
Defendant-Appellee. ) Judge Presiding.
______________________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________

Plaintiff, David Fandel, doing business as Fandel Construction, performed construction

work for defendant, Tiffany Allen, on defendant’s home. After the project was complete,

plaintiff recorded a “claim for lien” and commenced suit to foreclose the lien after defendant

stopped payment on the check she tendered in payment of the services. Plaintiff now appeals

from the trial court’s granting of summary judgment in favor of defendant. We reverse and

remand.

FACTS

In July 2007, defendant contacted plaintiff and requested that plaintiff submit a bid to

replace the roof on her home. Plaintiff inspected the roof. The day after his inspection, plaintiff
tendered a written, itemized work order to defendant for her consideration. Plaintiff did not

provide defendant with a copy of a consumer rights brochure prepared by the Attorney General’s

office. The work order specified the work to be done, the materials to be used, and the total cost

of $9,581 to complete the work. The work order was not signed by defendant. Instead,

defendant merely advised plaintiff to proceed in accordance with the itemized work order. The

job was completed August 1, 2007, and defendant tendered a check to plaintiff pursuant to the

work order plus $100 for a change defendant requested, thereby totaling $9,681. Defendant

subsequently stopped payment on the check.

Plaintiff filed a “claim for a mechanic’s lien” in the recorder’s office of Bureau County.

On October 17, 2007, plaintiff commenced a suit to foreclose the lien. Defendant filed a

response and a motion for summary judgment arguing that plaintiff’s failure to comply with

sections 20(a) and 30 of the Home Repair and Remodeling Act (Home Repair Act) (815 ILCS

513/1 et seq. (West 2006)) barred him from asserting a lien upon her property. Upon hearing

argument, the trial court granted defendant’s motion, thus denying plaintiff any payment for the

work he had done.

ANALYSIS

Plaintiff appeals the trial court’s order granting 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 ILCS 513/1 et seq. (West 2006)) bars him from

asserting a mechanics’ lien upon defendant’s property.

Principles of statutory construction dictate that the language of a statute be given its plain

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

2
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 Ill. App. 3d at 1059, 726 N.E.2d at 625. A court should interpret a statute 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 statutory construction and summary judgment is de novo. Swavely v. Freeway Ford Truck

Sales, Inc., 298 Ill. App. 3d 969, 976, 700 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 setting out the pertinent sections of the Home Repair Act in their entirety.

Section 20(a) of the Home Repair Act states:

Ҥ20. Consumer rights brochure. (a) For any contract over

$1,000, any person engaging in the business of home repair and

remodeling shall provide to its customers a copy of the ‘Home

Repair: Know Your Consumer Rights’ pamphlet prior to the

execution of any home repair and remodeling contract. The

consumer shall sign and date an acknowledgment form entitled

‘Consumer Rights Acknowledgment Form’ that states: ‘I, the

homeowner, have received from the contractor a copy of the

pamphlet entitled “ ‘Home Repair: Know Your Consumer

Rights.’” The contractor or his or her representative shall also sign

and date the acknowledgment form, which includes the name and

address of the home repair and remodeling business.” 815 ILCS

3
 513/20 (West 2006).

Section 30 of the Home Repair Act states:

Ҥ30. Unlawful Acts. It is unlawful for any person

engaged in the business of home repairs and remodeling to remodel

or make repairs or charge for remodeling or repair work before

obtaining a signed contract or work order over $1,000 and before

notifying and securing the signed acceptance or rejection, by the

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

clause as required in Section 15 and Section 15.1 [citations] of this

Act. This conduct is unlawful but is not exclusive nor meant to

limit other kinds of methods, acts, or practices that may be unfair

or deceptive.” 815 ILCS 513/30 (West 2006).

Section 5 of the HRRA sets forth the policy statement of the General Assembly in

enacting the Home Repair Act. It states:

Ҥ5. Policy. It is the public policy of this State that in order

to safeguard the life, health, property, and public welfare of its

citizens, the business of home repair and remodeling is a matter

affecting the public interest. The General Assembly recognizes

that improved communications and accurate representations

between persons engaged in the business of making home repairs

or remodeling and their consumers will increase consumer

confidence, reduce the likelihood of disputes, and promote fair and

4
 honest practices in that business in this 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 correct 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 paying for it.

In the present case it is undisputed that the written work order provided 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 acknowledges that when he

began work for defendant, the anticipated costs were over $1,000. Plaintiff, however, asserts that

because the Home Repair Act does not provide individual homeowners with a private right of

action to enforce violations of the Home Repair Act, defendant is not entitled to judgment as a

matter of law. Plaintiff also alleges that the trial court’s holding improperly implies a judicial

repeal of the Mechanics Lien Act (Lien Act) (770 ILCS 60/0.01 et seq. (West 2006)).1 At the

time this case was argued, there were only two Illinois appellate opinions relevant to our

analysis: a previous decision 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 Fourth 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 decided

1
While defendant argues plaintiff waived this contention, we note that the waiver rule 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 court’s holding in MD Electrical Contractors, Inc. v.

Abrams, 228 Ill. 2d 281, 888 N.E.2d 54 (2008). This holding, however, is not relevant to our

5
K. Miller Construction Co. Inc. v. McGinnis, 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 orally argue the

impact of the Miller holding, we discuss the case briefly in footnotes 6 and 7.

In Slepian, the plaintiff, Central Illinois Electrical Services (CIES), entered into an oral

contract with the homeowners to provide electrical work as part of a remodeling project. Upon

completion of the project, the Slepians failed to pay CIES. CIES subsequently sued to foreclose

a mechanics’ lien on the Slepians’ property and, in addition, alleged claims for unjust enrichment

and quantum meruit. In response, the Slepians alleged that CIES had violated the HRRA by

failing to provide a written contract. Thus, the Slepians argued that the oral contract was void

and therefore could not be the basis of recovery under a mechanic’s lien. After a bench trial, the

trial court found in CIES’s favor with respect 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 and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10(a) (West

2006)). On appeal, we discussed CIES’s claim that the Home Repair Act did not apply to it

because it was a successor contractor without a clearly defined project against which to itemize

analysis in that it dealt solely with the question of whether the Home Repair Act applied to

subcontractors. The court concluded that the Home Repair Act does not apply to subcontractors

who, by virtue of their working for a general contractor, did not make “representations” to a

homeowner, did not negotiate with a homeowner, did not present 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.2d at 60-61. The court found the remaining issue of whether subcontractors are able to

recover in quantum meruit was forfeited. Abrams, 228 Ill. 2d at 299-300, 888 N.E.2d at 65.

6
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 language of the Act clearly and unambiguously

requires anyone engaged in the business of home repair and

remodeling to obtain a signed contract before initiating work that

will exceed $1,000 in cost. The trial court erred in concluding the

Act did not apply in the instant case, and the court should now hear

any claims that were dismissed 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 work were not

unreasonable. Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at1173. We also determined that the

outcome of the proceedings would not have been different had the Slepians been allowed to

proceed on their Consumer Fraud Act claims. Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d

at1173.

We believe the holding in Slepian is very narrow. Specifically, the Slepian court: (1) held

that the Home Repair Act applies to CIES regardless of the fact that it is a successor contractor,3

3
While we offer no position on this issue, we recognize that an argument can be made

7
(2) affirmed the dismissal, on the merits, of the Slepians Consumer Fraud Act counts, and (3)

reversed and remanded the matter so that 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 whether CIES, as a successor contractor, knew enough to comply with the Home

Repair Act or whether the Slepians were in the class 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. (Barry, J.,

dissenting). Ultimately, he would have found the Home Repair Act inapplicable. It is for these

reasons that we find Slepian both factually and legally distinguishable from the present case.

The Bogard court and the dissent, however, read Slepian much more broadly, apparently

finding the implicit creation of the use of the Home Repair Act as an affirmative defense.

Inasmuch as there was no discussion of rights of action or affirmative defenses or other uses of

the HRRA, we would suggest such a reading is incorrect.

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 a

that the holding in Abrams, which held that the Home Repair Act did not apply to subcontractors,

overruled our previous holding in Slepian that the Home Repair Act applies to CIES regardless

of the fact that it is a successor contractor. The resolution of this question would appear to rest in

whether CIES made “representations” to the Slepians, negotiated with the Slepians, presented

written contracts to the Slepians, or was in a position to accept counteroffers. See Abrams, 228

Ill. 2d at 291-92, 888 N.E.2d at 60-61.

8
breach of contract claim and, in addition, alleged claims for unjust enrichment and quantum

meruit. The Bogards filed a motion to dismiss claiming that Smith violated the Home Repair Act

by not securing a written contract prior to initiating construction and failing to provide them with

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

recovery. Upon hearing argument, the trial court granted the Bogards’ motion in its entirety,

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 further found that because Smith was

unable to recover under an action at law, he was precluded from recovery under any equitable

theory as well because such a recovery would defeat the entire purpose of the Home Repair Act

and the public policy behind it.

On appeal, Smith argued that a disputed issue of whether the Home Repair 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 meruit. The Fourth District rejected Smith’s

claim that he was merely a subcontractor and thus not required to comply with the Home Repair

Act. Bogard, 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548. The court 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 precluded from

recovering any amounts he claims due for work performed.

Allowing a contractor a method of recovery when he has breached

9
 certain provisions of the Act would run afoul of the legislature’s

intent of protecting consumers, would reward deceptive practices,

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 an affirmative matter (Smith’s violation 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 turn to plaintiff’s claim that because the Home

Repair Act does not provide individual homeowners with a private right 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 affirmatively preclude a

contractor from asserting a mechanics’ 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 Practices Act (815 ILCS 505/10(a) (West 2006)),

caused her to suffer actual damages as a proximate result of the deficiency.” We agree.

At the outset, we note that the Home Repair Act does not contain any language that

explicitly or implicitly provides that a violation of the Home Repair Act may be enforced by

consumers in a private cause of action. Rather, section 35 states that the Attorney General or the

State’s Attorney “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 (West

2006). Section 35(b) also states that “[a]ll remedies, penalties, and authority granted” to the

10
Attorney General or the State’s Attorney “by the Consumer Fraud and Deceptive Business

Practices Act [(815 ILCS 505/1 et seq. (West 2006))] shall be available to him or her for

enforcement of this Act.” 815 ILCS 513/35 (West 2006). Moreover, “any violation of this Act

shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815

ILCS 513/35 (West 2006).

Here on appeal, defendant does not assert that she was unaware of her consumer rights at

the time she instructed plaintiff to begin work on her roof. Instead, she has merely alleged that

plaintiff’s procedural errors in not securing her signature on the written contract prior to initiating

construction and failing to provide her with the consumer rights 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 purpose of the Lien Act is “to require a

person with an interest in real property to pay for improvements or benefits which have been

induced or encouraged by his or her own conduct.” Leveyfilm, Inc. v. Cosmopolitan Bank &

Trust, 274 Ill. App. 3d 348, 352, 653 N.E.2d 875, 877 (1995). Section 1 of the Lien Act permits

a lien upon premises where the value or the condition of the property has been increased by

reason of the furnishing of labor and materials. 770 ILCS 60/1 (West 2006). Specifically,

section 1(a) states in pertinent part:

“Any person who shall by any contract or contracts, express

or implied, or partly expressed or implied, with the owner of a lot

or tract of land, or with one whom the owner has authorized or

knowingly permitted to contract, to improve the lot or tract of land

or for the purpose of improving the tract of land, or to manage a

11
 structure under construction thereon, is known under this Act as a

contractor and has a lien upon the whole of such lot or tract of land

and upon adjoining or adjacent lots or tracts of land of such owner

***.” 770 ILCS 60/1(a) (West 2006).

As seen above, the Lien Act makes no distinction between oral and written contracts.

Moreover, Illinois law provides that a contractor’s right to a mechanics’ lien under the Lien Act

derives from the contractor’s performance of the contract. Leveyfilm, Inc. v. Cosmopolitan Bank

& Trust, 274 Ill. App. 3d 348, 354, 653 N.E.2d 875, 879 (1995). Thus, the pertinent question in

the present case regarding whether plaintiff can assert a lien against defendant’s property

revolves around the validity of the agreement between the two parties and the plaintiff’s

performance of that agreement. The legal capacity 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. App. 3d 428, 433, 822 N.E.2d 905, 909 (2005). The lien, in turn, must be based upon a valid

contract, and in its absence, the lien is unenforceable. G.M. Fedorchak, 355 Ill. App. 3d at 433

822 N.E.2d at 909.

In the present case, defendant requests that we find the agreement she entered into with

plaintiff invalid because plaintiff failed to comply with sections 20(a) and 30 of the Home Repair

Act. While plaintiff’s failure to comply with these sections does constitute an unlawful violation

under the Home Repair Act, we find that this unlawful violation does not act to automatically

invalidate the agreement between the parties. In coming to this conclusion, we note once again

that the Home Repair Act is void of any language which serves to invalidate the parties’

agreement when the contractor fails to secure a written contract or fails to provide the

12
homeowner with a consumer rights brochure. Instead, the Home Repair Act merely provides that

these procedural errors, along with the other procedural errors contained within its provisions,

constitute unlawful violations. 815 ILCS 513/30 (West 2006).

These unlawful violations, however, do not act to invalidate an otherwise enforceable

agreement. We have previously held that “ ‘[u]nless a bargain necessarily involves an illegal act,

it is not unenforceable, and if it is later performed in a way that involves some slight violation of

law, not seriously injurious to the public order, the person performing may recover on his

bargain.’ ” Amoco Oil Co. v. Toppert, 56 Ill. App. 3d 595, 597, 371 N.E.2d 1294, 1296 (1978),

quoting 6 Williston, Contracts §1767, at 5018 (rev. ed. 1938). The First District stated this

principle more broadly:

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

manner as well as in an illegal manner, it will not be declared void

because it may have been performed in an illegal manner, since bad

motives are never to be imputed to any man where fair and honest

intentions are sufficient to account for his conduct. The rule has

been stated to be that if an agreement can by its terms be performed

lawfully, it will be treated as legal, even if performed in an illegal

manner ***.” ‘ “ Mani Electrical Contractors v. Kioutas, 243 Ill.

App. 3d 662, 666, 611 N.E.2d 1167, 1170 (1993), quoting

Meissner v. Caravello, 4 Ill. App. 2d 428, 431-32, 124 N.E.2d 615,

616-17 (1955), quoting 12 Am. Jur., Contracts §153, at 647.

Here, the parties entered into an oral agreement to repair defendant’s roof. Specifically,

13
defendant sought out plaintiff and asked him to submit a bid to replace the roof. Plaintiff

tendered a written, itemized work order to defendant for her consideration. Defendant advised

plaintiff to proceed in accordance with the itemized work order. Plaintiff completed the job and

defendant tendered a check to defendant for the amount stated in the work order plus $100 for a

change defendant had requested, thereby totaling $9,681. Defendant subsequently stopped

payment on the check. While plaintiff’s failure to provide defendant with a copy of the

consumer rights brochure and secure a written contract does constitute an unlawful violation

under the Home Repair Act, the underlying bargain to repair defendant’s roof did not provide for

or require any violation of law. Thus, we find that the underlying agreement between the parties

was valid and plaintiff’s procedural violations relative to that agreement do not bar recovery.

Defendant is incorrect in asserting that such an interpretation renders sections 20(a) and

30 of the Home Repair Act meaningless. While the Home Repair Act does not prohibit a

contractor from recovery in the event a contractor fails to secure a written contract or fails to

provide the homeowner with the consumer rights brochure, it does exact penalties for these

violations. Specifically, the Home Repair Act states that the Attorney General may seek

penalties against the contractor in case of violation. 815 ILCS 513/35 (West 2006). More

importantly for our consideration, however, the Home Repair Act plainly and unambiguously

provides that “any violation of this Act shall constitute a violation of the Consumer Fraud and

Deceptive Business Practices Act.” 815 ILCS 513/35 (West 2006). Section 10(a) of the

Consumer Fraud Act provides defendant with the right to bring an action against plaintiff for any

actual damages she suffered as a result of any violation of the Consumer Fraud Act. 815 ILCS

505/10(a) (West 2006). It is through section 10(a) of the Consumer Fraud Act that plaintiff can

14
recover for any actual damages she suffered as a result of plaintiff’s failure to comply with

sections 20(a) and 30 of the Home Repair Act.4 This court, in Slepian, has previously recognized

this fact by affirming the trial court’s dismissal of plainitff’s Consumer Fraud Act claims on the

merits, not as a matter of procedural inapplicability. 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 right of action under the

Home Repair Act. Nor do we believe the legislature intended to allow homeowners to use the

Home Repair Act as an affirmative defense to mechanics’ liens.5 To hold otherwise would result

4
While some may argue that our position would require homeowners to engage in dual

litigation in that they would have to come back to court after a mechanics’ lien has been secured

against their property, this reasoning is simply incorrect in that it ignores the fact that trial courts

can hear both a contractor’s mechanics’ lien claim and a homeowner’s Consumer Fraud Act

claim in the same hearing. We note that this type of combined hearing is exactly what occurred

in Slepian. See Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at1173. Moreover, the Home

Repair Act is void of any condition restricting the time a homeowner can bring a Consumer

Fraud Act action. Instead, the Home Repair Act simply provides that “any violation of this Act

shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815

ILCS 513/35 (West 2006).
5
The authority relied upon by the dissent which illustrates situations where courts have

allowed a defendant to use a plaintiff’s violation of other acts, such as the Motor Vehicle Retail

Installment Sales Act (Sales Act) (815 ILCS 375/1 et seq. (West 2006)), as an affirmative

15
in a judicial repeal of the Lien 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 and both factually and legally distinguishable.

However, to the extent that one accepts the broad interpretation of Slepian, as both the Bogard

court and the dissent does, we would find that Slepian was incorrectly decided.

Moreover, we reject the dissent’s contention that our holding here on appeal “deviate[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. Instead, the defendants in Muncy filed a motion to

dismiss plaintiff’s complaint, asserting that plaintiff was precluded from enforcing a contract

because it did not meet the requirements of the Sales Act (815 ILCS 375/1 et seq. (West 2006)).

defense against a plaintiff’s claim even 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 distinguishable on the grounds that they deal with entirely different factual scenarios, and with

entirely different 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 foreclosure 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 held, however, that the equitable

remedy of quantum meruit remained available to the builder. Miller, 394 Ill. App. 3d at 265, 913

N.E.2d at 1161. We offer no opinion on this specific issue, as we have already found that a valid

contract exists in the present case.

16
It is on this basis that we find Muncy factually distinguishable from the instant case. We would,

however, also note that while we believe the holding in Muncy is inapplicable, the court

specifically held:

“[F]ailure to comply with the provisions of the [Sales Act] does not

render the contract void or unenforceable. [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 clearly illustrates that Muncy does not stand for the proposition that the Sales

Act can be used to void an existing legal contract. Instead, the contract remains valid, but the

noncomplying party is subject to the penalties provided in the statute. 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 consistent with our interpretation of the Home Repair Act.

Based upon a review of the record, it appears that the failure to provide defendant with a

copy of the consumer rights brochure and to secure a signature on the itemized work order were

oversights on the part of plaintiff grounded in ignorance of the statute. The public welfare which

these sections were calculated to protect was not injured and defendant received her new roof.

All elements for a valid contract existed, including offer, acceptance and consideration. None of

these terms provided for or required a violation of law. Thus, we find that the oral agreement

between the parties does constitute a valid oral contract under Illinois law. Consequently, we

hold that plaintiff’s subsequent performance of that agreement creates a right to a mechanics’ lien

under the Lien Act. See Leveyfilm, 274 Ill. App. 3d at 354, 653 N.E.2d at 879. Because the

17
Home Repair Act is void of any language which serves to invalidate the parties’ agreement,

defendant cannot now use the Home Repair Act to bar plaintiff from asserting this lien.7

However, if defendant has suffered any actual damages as a result of plaintiff’s unlawful

violations, the statute has created a cause of action 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 General or the State’s Attorney is free to seek penalties against plaintiff for his unlawful

7
The use of “void” in section 15.1(c) of the Home Repair Act does not act to void a valid

contract. Section 15.1 deals with situations where the contractor presents the homeowner with a

written offer containing provisions whereby the homeowner agrees to submit all disputes to

arbitration and waive her right to a trial by jury. See 815 ILCS 513/15.1 (West 2006). Section

15.1(b) requires the contractor to give the homeowner the “option of accepting or rejecting both

the arbitration clause and the jury trial waiver clause.” 815 ILCS 513/15.1(b) (West 2006). It

also requires that the homeowner sign “her name and write the word ‘accept’ or ‘reject’ in the

margin next to each *** clause.” 815 ILCS 513/15.1(b) (West 2006). Section 15.1(c) merely

states: “Failure to advise a consumer of the presence of the binding arbitration clause or the jury

trial waiver clause or to secure the necessary acceptance, rejection or consumer 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.” (Emphasis added.) 815 ILCS 513/15.1 (West 2006). In

using section 15.1 to reject the builder’s claim that section 30 does not bar oral contracts, the

Miller court has misread and incorrectly applied section 15.1. Had the legislature intended to

allow a contractor’s “unlawful violation” to be used to void a valid contract, it could have

included such language in section 30, as it did in section 15.1.

18
violations.

For the foregoing reasons, we reverse the judgment of the Bureau County circuit court

and remand the matter for further proceedings.

Reversed and remanded.

Filed January 14, 2010 (2nd 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).

19
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.

20
 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 Lien

21
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 Chief

22
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 those

23
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 contractor

24
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.

JUSTICE LYTTON, dissenting:

I dissent. 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 persons engaged in the

25
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 effectuate its purpose, the Act imposes certain

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 2006). If the contract is for over $1,000, the homeowner

must sign a form acknowledging that he received 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 State’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

express provision conferring upon individuals, other than the

Attorney General or State’s Attorneys, a cause of action to enforce

26
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. App. 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 Ill. 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 because defendant had no

private right of action to enforce the Home Repair and Remodeling

Act, she cannot raise the Act as an affirmative defense. I

27
disagree. 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, regulations adopted 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 affirmative

defense in foreclosure actions even though the regulations do not

create a private right of action. See Wells Fargo Home Mortgage,

28
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, 530 A.2d 919 (1987); Bankers Life Co. v. Denton, 120

Ill. App. 3d 576, 458 N.E.2d 203 (1983); Cross v. Federal National

Mortgage Ass’n, 359 So.2d 464 (Fla. App. 1978); Federal National

Mortgage Ass’n v. Ricks, 83 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 its implementing

regulations are those receiving assistance through its

various housing programs. This would include the

defendants as mortgagors of a H.U.D. insured mortgage.

Therefore, in order to effectively insure that the

interests of the primary beneficiaries of the H.U.D.

mortgage servicing requirements are being protected,

mortgagors must be allowed 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 goal

29
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

foreclosure 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 666; Burgmeier 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 Land Bank of St. Paul v. Overboe, 404 N.W.2d

445 (N.D. 1987). The FCA was created to protect borrowers "to

ensure that they received 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 defense 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 118

30
(N.D. 1990), the North Dakota Supreme Court explained:

"There is a vast difference 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 damages 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 analysis of the North Dakota Supreme Court compelling.

Although a statute may inhibit its use as a private right of

action, 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, 168, 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 whether

31
the contractor complied with the Act would defeat the Act’s purpose

of protecting 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 of protecting 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

Act 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 incorrectly 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 validity 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.

32
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 breach 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 agreed 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 2006, Miller completed the project. The

McGinnises paid Miller $177,580.33 but refused to pay any more.

Miller filed a complaint against the McGinnises, alleging that he

was entitled to (1) a lien on the McGinnises’ property for over

$300,000, (2) recover the unpaid balance based on breach of the

oral contract, and/or (3) compensation for his labor, materials,

and services on a quantum meruit theory. The McGinnises filed a

motion to dismiss, arguing that Miller could not recover because he

never provided 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 his

lien foreclosure claim in count I and his breach of

contract claim in count II can stand in the face of the

33
 plain language of the Act that bars recovery for work

that exceeds $1,000 on a residence without 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

estimate of "$20,000 or less" for a room addition but did not

provide a written contract or a consumer rights pamphlet. The

homeowners filed a motion to dismiss the contractor’s breach of

contract action against them, claiming that the contractor was

precluded from recovery. The trial court agreed, and the appellate

court affirmed the trial court’s decision, stating: "We find the

Act applies to Smith, that Smith violated several provisions of the

Act, and those violations support the dismissal of his breach-of-

contract 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, alleging 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 violated

34
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 engaged in the business of home repair

and remodeling to obtain a signed contract before

initiating work that will exceed $1,000 in cost. The

trial court erred in concluding the Act did not apply in

the instant 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 complaint,

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

defendant with a consumer rights pamphlet and obtain a signed

written contract prior to performing work on defendant’s home

35
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 Remodeling Act is written in mandatory

terms requiring contractors to provide customers with a copy of a

consumer rights pamphlets and obtain a signed written contract

before beginning work. See 815 ILCS 513/20(a), 30 (West 2006). A

contractor’s failure to obtain 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 other

written contract with plaintiff, there is no valid contract between

plaintiff and defendant that could form the basis for plaintiff’s

mechanics’ lien. See 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. 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.

IV

36
 The majority’s decision in this case has far-reaching

implications that will affect not only the Home Repair and

Remodeling Act but at least 18 other Illinois consumer protection

statutes that contain 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,

8
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
like countless others, has held that a consumer can raise a

violation of such consumer protection 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, 358 Ill. App. 3d at

550, 831 N.E.2d at 1173.

Consumer protection statutes are to be liberally construed to

effectuate their purpose of protecting consumers. See Price v.

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
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 consumer protections. For these reasons, I

dissent.

39