The purpose of this article is to provide a summary of Illinois franchise law and federal franchise law as applied in Illinois. Because franchises are governed by both federal and state regulations, franchise law is complex, and an experienced franchise attorney should be an essential part of your team, whether you are a franchisor or franchisee.
The purpose of this article is to discuss common disputes between condominium owners and condominium associations, condominium boards, and individual members of condominium boards in Illinois. We will provide an overview of the primary sources of litigation between condominium owners and condominium associations, as well as an explanation of how such litigation is typically handled according to Illinois law.
Mechanics Liens in Illinois are governed by the Illinois Mechanics LIen Act (770 ILCS 60/0.01, et seq.). The purpose of the Mechanics Lien Act is to ensure that contractors and subcontractors who provide labor, materials, fixtures, or machinery to improve real estate receive payment for their services and materials.
The Mechanics Lien Act provides a mechanism whereby contractors and subcontractors can place a lien on property that they work to improve in the amount of the value of their services and materials. The lien prevents the owner of the property from transferring the property without first paying the contractor or subcontractor who holds the lien. A Mechanics Lien also allows the contractor or subcontractor who holds the lien to foreclose on the property and have it sold in order to satisfy the lien.
A lawsuit is initiated in Illinois when the Plaintiff files a document called a Complaint, stating a cause of action which would entitle the plaintiff from relief from the court, and requesting damages or other relief from the court. The complaint lays out the relevant allegations in the case that would entitle the plaintiff to a claim against the defendant.
After the complaint has been filed, the defendant can either file an Answer, which admits or denies the allegations of the plaintiff and raises any affirmative defenses that would defeat the plaintiff claims; or, the defendant can file a Motion to Dismiss, which states that there is either a defect in the Complaint or some other affirmative matter which requires the court to dismiss the case.
In civil litigation, the purpose of a trial is for either a jury or the judge to decide facts that are in dispute. If the plaintiff's story differs from that of the defendant, the trier of fact (the judge or jury) must decide which story is more likely to be true, and rule in that party's favor.
However, sometimes a trial is not necessary. Parties file motions for summary judgment, requesting judgment in their favor without a trial, when either there is no dispute as to the material facts, or the other side cannot prove their claims or defenses.
Despite what many television programs portray, only about 0.6% of civil cases actually make it to the trial phase. So, what is your attorney doing the rest of the time? Simply put: discovery.
Your attorney’s job is to literally discover how strong or weak your case is, and how to proceed from there. In order to do that, your attorney has to do a considerable amount of research. And, we’re not talking legal research here, I mean factual research.
Your attorney has to uncover as much as he or she possibly can about you, your adversary, and the situation leading to you hiring an attorney to determine what course of action is best for you. The vast majority of civil cases settle during this discovery phase because one side or other comes across facts that tell the attorney the client would be unlikely to win at trial. So, how does this whole process begin?
In deciding which attorney to hire, legal skills and experience are prerequisites. The top 3 qualities that set good attorneys apart from mediocre ones, which you can assess early in the relationship are:
In many commercial leases, tenants are required to pay a share of taxes, utilities, and common area maintenance charges ("CAM"). The tenant's share will typically be proportional to the amount of space leased by the tenant relative to the total rentable space of the building. This "additional rent" will fluctuate from year to year. It is not uncommon for landlords to overcharge their tenants for CAM. This is referred to as Common Area Maintenance Fraud.
If you are a realtor giving your client an opinion as to the value that his or her property will sell for or the time that it will be on the market, be careful. You may be at risk for consumer fraud (click here for an overview of consumer fraud law).
In Duhl v. Nash Realty Inc., 102 Ill.App.3d 483, 429 N.E.2d 1267 (1st Dist.1981), the 1st District Appellate Court upheld a cause of action for consumer fraud where a realtor told a prospective client that their existing home would sell “very quickly” for between $162,000.00 and $163,000.00, when in fact the home did not sell quickly and was overvalued by the realtor by $20,000.00. The realtor was hired for both the sale and the purchase of a new home. Because the existing home did not sell as quickly as the realtor represented, the Plaintiffs were unable to afford to stay in the new home and were forced to sell it at a less than ideal price.
If you have outstanding tax liability with the IRS that you are unable to pay, you have several options to either reduce the amount of debt or negotiate a payment plan with the IRS. These include (1) a conventional Installment Agreement; (2) a Partial Payment Installment Agreement; (3) an Offer in Compromise; and (4) Bankruptcy. This article will flesh out each of these options and help you determine which option is most appropriate for you.
What are the Responsibilities of a Trustee When Selling Real Estate? | Illinois Trust Administration
If you are a trustee responsible for the administration of a trust after the passing of a loved one, you have a fiduciary duty to act in the best interest of the beneficiaries of the trust, within the limitations and instructions laid out by the trust document.
If a trust is in place and estate planning has been done properly prior to the death of the grantor of the trust, it should not be necessary to open a probate estate. However, if the beneficiaries disagree with the actions of the trustee, the beneficiaries may open a probate case and seek to make the trustee personally liable for mismanaged assets of the estate.
An Indemnification agreement is an agreement between two parties providing that if one party is sued for a particular reason, the other party will cover the costs of defending the lawsuit as well as any damages that arise from the suit. It is a useful tool when two parties are intertwined in a larger transaction, and want to divide legal responsibility between them. It protects each party from lawsuits for which the other should be responsible.
Indemnification agreements can be built into a larger contract (like a lease, asset purchase agreement, or employment agreement) or it can be a stand-alone agreement.
In Illinois, when an employee is terminated, the employer is required to make full payment of all amounts due to the employee at the next scheduled payroll. This may include compensation for unused vacation days, but typically does not include compensation for unused sick days or holidays (unless otherwise contracted).
If the employer fails to timely pay the full amount due to the employee, the Illinois Wage Payment and Collection Act provides that the employee is entitled to recover:
When two parties litigate in America, each side typically bears its own attorney fees, whether they win or lose. The prominent exception to this rule is when attorney fees are specifically provided for either in a statute particular to the subject matter of the litigation or a in contract between the parties.
When I review or draft a contract for my clients, I always make sure that an “attorney fee clause” (otherwise known as an “enforcement clause“) is included. Attorney fee clauses provide that if either party to a contract successfully pursues or defends a cause of action for breach of contract, the losing party will pay the winning party’s attorney fees.
This article is the eighth in a series of nine articles explaining the Eight Goals of a Good Estate Plan. In this Article we will explain how to use Family Limited Partnerships and Irrevocable Trusts to protect assets from creditors in Illinois.
Tenancy By the Entirety
In Illinois, a married couple can own their primary residence in a manner called“Tenancy by the Entirety.” Creditors of only one spouse cannot place a lien on property held in Tenancy by the Entirety. This method of ownership is reflected on the deed to the property. It is restricted to married couples’ primary residences. Ensuring that your residence is held as tenants by the entirety, rather than joint tenancy or tenancy in common is a good first step in protecting your assets from creditors.
If you are renting property and would like to evict one of your tenants for non-payment of rent or for any other reason, you and your lawyer will be required to follow these steps:
How Much Time Do I Have in My Home After a Foreclosure Judgment? | Illinois Foreclosure Timeline Explained
If the bank holding your mortgage has filed a foreclosure action against you and received a judgment of foreclosure from the Court, you will still have a significant amount of time in your home before you are required to vacate the premises.
The borrower has 90 days after the date of judgment to redeem the property. In order to redeem, you must pay all amounts due and owing to the bank. A sale on the property cannot take place until after the redemption period. After the redemption period has expired and proper notice has been given by the bank, the property can be sold. This is usually done by the Sheriff.
The Illinois Consumer Fraud and Deceptive Business Practices Act is a state statute designed to protect consumers from business owners who use deceptive tactics to prey on consumers. It is referred to by shorthand as the Consumer Fraud Act. It is easier to maintain a cause of action under the Consumer Fraud Act than under common law fraud.
In order to maintain a cause of action for common law fraud, you must plead and prove the following five elements:
In our past articles on estate planning, we have primarily discussed the Revocable Trust, which allows your estate to avoid probate but does not protect your estate from creditors. If you are interested in using estate planning in order to shield certain assets from your creditors, two other vehicles may be useful: (1) the Family Limited Partnership; and (2) the Irrevocable Trust.
In our hour of need, let’s call on the Avengers to help make estate planning interesting, which is on par with saving New York from Loki in terms of difficulty. In order to develop the super-soldier serum that would eventually imbue Captain America with his powers, Howard Stark borrowed several million dollars. Although Howard has every intention and expectation of repaying the loan, he would like to make sure that his prized asset, Stark Tower, as well as his savings account, are protected from collection by his creditors in the event of a default. His primary concern is ensuring that these assets are included in Tony’s inheritance.
Most apartment tenants have a horror story or two: busted pipes, leaks, mold, infestation, horrible neighbors, etc.–and many of these apartment tenants probably did nothing about these horror stories, believing that their only remedy was moving out. Historically this was the case, but today tenants have a variety of rights to ensure that they live in peace and comfort.Implied in every lease is an implied warranty of habitability, which requires that the apartment be maintained in a livable condition by the landlord. Working pipes, plumbing, heat, removal of insects and rodents, and keeping the premises within the housing code are the some of the basic requirements of this warranty.
Illinois Non-compete Agreements Explained | when is a Non-Compete Agreement Enforceable in Illinois?
As part of your employment contract, you may have signed an agreement not to compete. These agreements give employers the protection they need to prevent employees from jumping ship to a competitor and bringing along any skills, information, client lists, and secrets they may have obtained from their previous employer. Employers need not worry about competitors poaching their most valuable employees to their detriment. However, these agreements inhibit an individual’s freedom to choose their own place of employment, and are oftentimes harsh or overly broad. As a result, such agreements are frequently contested in court. How do you know if your non-compete agreement is enforceable?
If you are a small business owner dealing with past due accounts receivable, or if you are having trouble paying your monthly bills and are receiving notices from creditors, you should acquaint yourself with the collection process. This article will provide a summary of that process. The narrative will be from the creditor’s perspective, but it will be equally helpful to debtors.
Bear in mind that each of the following steps tends to increase the pressure on the debtor to settle his debt. Each successive step will only be required if the debtor is non-responsive to the previous steps. In practice, it is usually unnecessary to take a collections case all the way through Step 7.
Illinois Law Blog: Learn About Law
O’Flaherty Law is based in Downers Grove, Elmhurst, and Naperville, Illinois. Our team has expertise in many areas of law including but not limited to bankruptcy law, business & corporate representation, civil litigation, criminal defense, estate planning, divorce & family law, immigration; probate, guardianship & elder law; and real estate law. If you have any questions or would like to schedule a free consultation, please e-mail us at firstname.lastname@example.org or call us at (630)324-6666.
Where You Can Read Us
O'Flaherty Law has experience in legal services in the following legal practice areas: estate planning and probate; featuring wills and trusts, powers of attorney, living wills, estate tax avoidance and probate practice; real estate law; featuring commercial and residential sales and leases, foreclosure defense, short sales, REO closings and consent foreclosures, mechanic's liens and landlord and tenant disputes; family law; featuring divorces, child custody, child support, paternity, adoption and orders of protection; criminal law; featuring DUI, traffic and criminal defense; business representation; featuring entity selection, incorporation and s-corp election, bylaws and operating agreements, annual reports, annual meetings of shareholders, employment agreements, handbooks and warning and termination letters, business contracts, independent contractor agreements, trademarks and copyrights, regulation and licensing compliance and dissolution and mergers; business and personal bankruptcy; featuring Chapter 7, Chapter 11 and Chapter 13 cases; litigation; featuring commercial contract and tort law, employment and labor law, personal injury and collections; and immigration law.
Located in Downers Grove, Illinois, O'Flaherty Law serves DuPage County, Will County, Cook County, Kendall County, Kane County and McHenry County in Illinois, as well as the following cities: Wheaton, Naperville, Woodridge, Downers Grove, Darien, Willowbrook, Westmont, Lisle, Oak Brook, Warrenville, Glen Ellyn, Aurora, North Aurora, Batavia, Geneva, St. Charles, Lemont, Joliet, Bolingbrook, Plainfield, Crest Hill, Lake Forest, Lake Bluff, Northbrook, Highland Park and Chicago.
© 2015 by O'Flaherty Law. All rights reserved.