State of Illinois
91st General Assembly

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[ Introduced ][ Engrossed ][ House Amendment 001 ]
[ Senate Amendment 001 ]


SB749 Enrolled                                 LRB9103048DJcd

 1        AN ACT to amend the Illinois Business Brokers Act of 1995
 2    by changing Sections 10-25, 10-105, and 10-115.

 3        Be  it  enacted  by  the People of the State of Illinois,
 4    represented in the General Assembly:

 5        Section  5.  The Illinois Business Brokers Act of 1995 is
 6    amended by changing Sections 10-25,  10-105,  and  10-115  as
 7    follows:

 8        (815 ILCS 307/10-25)
 9        Sec. 10-25.  Fees and funds.  All fees and funds accruing
10    for  the administration of this Act shall be accounted for by
11    the Secretary of State and shall be deposited with the  State
12    Treasurer  who shall deposit them in the Securities Audit and
13    Enforcement Fund.
14        (a)  The Secretary of State shall, by rule or regulation,
15    impose and collect fees necessary for the  administration  of
16    this  Act,  including  but  not  limited  to,  fees  for  the
17    following purposes:
18             (1)  Filing an application pursuant to Section 10-10
19        of this Act;
20             (2)  Examining  an  application pursuant to Sections
21        10-10 and 10-20 of this Act;
22             (3)  Registering a  business  broker  under  Section
23        10-10 of this Act;
24             (4)  Renewing  registration  of  a  business  broker
25        pursuant to Section 10-20 of this Act;
26             (5)  Failure  to file or file timely any document or
27        information required under this Act;
28             (6)  Filing a notice of lien with the  Secretary  of
29        State pursuant to Section 10-115 of this Act.
30        (b)  The  Secretary  of State may, by rule or regulation,
31    raise or lower any fee imposed by, and which  he  or  she  is
SB749 Enrolled             -2-                 LRB9103048DJcd
 1    authorized by law to collect under, this Act.
 2    (Source: P.A. 89-209, eff. 1-1-96; 90-70, eff. 7-8-97.)

 3        (815 ILCS 307/10-105)
 4        Sec.  10-105.   Scope  of  the Act.  This Act shall apply
 5    only when the person engaging or seeking to engage engaged or
 6    sought to be engaged by the business broker is  domiciled  in
 7    this  State or when the company or business sought to be sold
 8    has  its  principal  place  of  business   in   this   State.
 9    Notwithstanding  any  other provision of this Section, a lien
10    on property arising under  Section 10-115 is enforceable only
11    against tangible property located in this State.
12    (Source: P.A. 90-70, eff. 7-8-97.)

13        (815 ILCS 307/10-115)
14        Sec. 10-115. Business broker lien.
15        (a)  Any business broker  shall  have  a  lien  upon  the
16    tangible  assets  of a business located in this State that is
17    the subject of a business broker's written contract  and  the
18    proceeds  from the sale of such business in the amount due to
19    that the broker under the written contract is due.
20        (b)  The lien shall be available to the  business  broker
21    named in the instrument signed by the owner of an interest in
22    the  assets seller or purchaser.  The lien arising under this
23    Act shall be in addition to any other rights that a  business
24    broker may have.
25        (c)  A  The  lien  under  this  Act does not shall attach
26    unless and until: upon
27             (1)  the business broker is being otherwise entitled
28        to  a  fee  or  commission  under  a   written   contract
29        instrument  signed  by the seller or its purchaser or the
30        seller or purchaser's  duly  authorized  agent;  and,  as
31        applicable
32             (2)  before the actual conveyance or transfer of the
SB749 Enrolled             -3-                 LRB9103048DJcd
 1        business  assets  or  property with  respect to which the
 2        business broker is claiming a lien, the  business  broker
 3        files a notice  of lien (i) as to real property, with the
 4        recorder  of  the  county  in  which the real property is
 5        located or (ii) as to tangible personal property, in  the
 6        Office of the Secretary of State.
 7        (d)  When   payment  to  a  business  broker  is  due  in
 8    installments, a portion  of  which  is  due  only  after  the
 9    conveyance  or  transfer of the tangible assets business, any
10    claim for lien for those payments due after the  transfer  or
11    conveyance  may  be  filed  at  any  time  subsequent  to the
12    transfer or conveyance of the tangible  assets  business  and
13    prior  to the date on which the payment is due but shall only
14    be effective as a lien against the tangible  assets  business
15    or  proceeds  to  the  extent  moneys  are  still owed to the
16    transferor by the transferee. In all other respects, the lien
17    shall attach as described in this subsection of the filing of
18    the notice of lien and not relate back to  the  date  of  the
19    written agreement.
20        (e)  If  a business broker has a written agreement with a
21    prospective purchaser or seller, then the lien  shall  attach
22    upon  the prospective purchaser or seller that is purchasing,
23    selling, or otherwise accepting a conveyance or  transfer  of
24    the  real  property  or  tangible  personal  property  of the
25    business and the filing of  a  notice  of  lien  (i)  in  the
26    recorder's office of the county in which the real property is
27    located,  as  to real property, and (ii) in the Office of the
28    Secretary of State, as to tangible personal property, by  the
29    business  broker  in  the  Office  of  the Secretary of State
30    within 90 days after the transfer to the purchaser  purchase,
31    sale, or other conveyance or transfer of the business that is
32    the subject of the written agreement with the business broker
33    .  The  lien  shall  attach  to the interest purchased by the
34    purchaser as of the date of the filing of the notice of  lien
SB749 Enrolled             -4-                 LRB9103048DJcd
 1    and  does not relate back to the date of the written contract
 2    receipt of any consideration by the seller  of  the  business
 3    that  is  the  subject  of  the  written  agreement  with the
 4    business broker.
 5        (f)  The business broker  shall,  within  10  days  after
 6    filing its notice of lien, mail a copy of the  notice of lien
 7    to the owner of the property business by depositing it in the
 8    United States mail, registered or certified mail, with return
 9    receipt  requested,  or personally serve a copy of the notice
10    served on the owner of record or his agent.  If the  lien  is
11    filed within 10 days prior to closing, the business broker is
12    not required to mail or personally serve a copy of the notice
13    of  lien.   Mailing  of  the  copy  of  the notice of lien is
14    effective if mailed to the address of the  business  that  is
15    the  subject  of the notice of lien, or to such other address
16    as the seller or  purchaser  has  provided  to  the  business
17    broker  in  writing  and  signed  by the seller or purchaser.
18    Mailing of the copy of  the  notice  of  claim  for  lien  is
19    effective  if  mailed  to  the  seller  at the address of the
20    business that is the subject of the notice of  lien    or  to
21    another  address that the seller or purchaser has provided in
22    writing to the business  broker when deposited  in  a  United
23    States mailbox with postage prepaid.  The broker's lien shall
24    be unenforceable if mailing of the copy of the notice of lien
25    does not occur at the time and in the manner required by this
26    Act.
27        (g)  A  business  broker may bring suit to enforce a lien
28    in the circuit  court  (i)  in  the  county  where  the  real
29    property  headquarters of the business being sold is located,
30    as  to  real  property,  or  (ii)  as  to  tangible  personal
31    property, either in the county where the   personal  property
32    is  located or where the principal office of the owner of the
33    personal  property, or  the  owner's  residence,  is  located
34    where  the  purchaser resides (or maintains its headquarters)
SB749 Enrolled             -5-                 LRB9103048DJcd
 1    if the lien is being filed against the  purchaser,  or  where
 2    the  seller  resides  (or  maintains its headquarters) if the
 3    lien is filed against the seller, by filing a  complaint  and
 4    sworn affidavit that the lien has been filed.
 5        (h)  The  person  claiming  a  lien shall, within 2 years
 6    after filing the  lien,  commence  proceedings  by  filing  a
 7    complaint.   Failure  to  commence proceedings within 2 years
 8    after  filing  the  lien  shall  extinguish  the  lien.    No
 9    subsequent notice of lien may be given for the same claim nor
10    may that claim be asserted in any proceedings under this Act.
11        (i)  A  complaint  under this Section shall have attached
12    to it a  copy  contain  a  brief  statement  of  the  written
13    contract or agreements on which the lien is founded and shall
14    contain,  the date when the contract or agreement was made, a
15    description of the services performed,  the  amount  due  and
16    unpaid,  a description of the tangible assets of the business
17    that is, or the proceeds from sale of which are,  subject  to
18    the  lien, and other facts necessary for a full understanding
19    of the rights of the parties.  The plaintiff shall  make  all
20    interested  parties,  of  whose  interest  the  plaintiff  is
21    notified  or has actual or constructive knowledge, defendants
22    to the action and shall issue summons and provide service  as
23    in  other  civil  actions.  When any defendant resides or has
24    gone out of the State, or on inquiry cannot be found,  or  is
25    concealed  within this State so that process cannot be served
26    on that defendant, the plaintiff shall cause a notice  to  be
27    given  to that defendant, or cause a copy of the complaint to
28    be served upon that defendant, in the  manner  and  upon  the
29    same  conditions  as  in other civil actions.  Failure of the
30    plaintiff to  provide  proper  summons  or  notice  shall  be
31    grounds  for  judgment  against the plaintiff with prejudice.
32    Every lien claimed under this  Act  shall  be  foreclosed  as
33    provided  in  the  Illinois Mortgage  Foreclosure Law, if the
34    lien is on real property,  or  as  provided  in  the  Uniform
SB749 Enrolled             -6-                 LRB9103048DJcd
 1    Commercial Code, if the lien is on personal property.
 2        (j)  The  lien notice shall state the name and address of
 3    the claimant, the name  of  the  purchaser  or  seller  whose
 4    property  or assets are subject to the lien, a description of
 5    the real or personal property that is  subject  to  the  lien
 6    business  upon  which  or  upon the proceeds from the sale of
 7    which the lien is being claimed, the  amount  for  which  the
 8    lien  is claimed, and the registration number of the business
 9    broker.  The notice of lien shall recite that the information
10    contained in the notice is true and accurate to the knowledge
11    of the signer signatory.  The notice of lien shall be  signed
12    by  the  business broker or by a person authorized to sign on
13    behalf of the business broker and shall be verified.
14        (k)  Whenever a claim for lien has been  filed  with  the
15    Office  of  the  Secretary  of State or the county recorder's
16    office  and  a  condition  occurs  that  would  preclude  the
17    business broker from receiving compensation under  the  terms
18    of  the  business  broker's  written  agreement, the business
19    broker shall provide to the purchaser of the business, if the
20    lien is filed against the purchaser's assets of the  business
21    that  are subject to this Act purchaser, or the seller of the
22    business, if the lien is filed against the seller's assets of
23    the business that are subject to this Act seller,  within  10
24    days  following  demand  by that party the owner of record, a
25    written release or satisfaction of the lien.
26        (l)  Upon written demand of the owner, lienee,  or  other
27    authorized  agent,  served  on  the  person claiming the lien
28    requiring suit to be commenced to enforce the lien or  answer
29    to  be  filed in a pending suit, a suit shall be commenced or
30    answer filed within 30 days thereafter, or the lien shall  be
31    extinguished.   Service  may  be  by  registered or certified
32    mail, return receipt requested, or by personal service.
33        (m)  If a claim for lien has been filed with  the  Office
34    of the Secretary of State or the county recorder's office and
SB749 Enrolled             -7-                 LRB9103048DJcd
 1    is  paid,  or  if  there  is  failure  to institute a suit to
 2    enforce the lien within the time provided by  this  Act,  the
 3    business  broker shall acknowledge satisfaction or release of
 4    the lien, in writing, on written demand of the  purchaser  of
 5    the  business, if the lien is filed against the purchaser, or
 6    the seller of the business, if the lien is filed against  the
 7    seller, within 5 days after payment or expiration of the time
 8    in which to file the lien.
 9        (n)  The  cost  of  proceedings  brought  under  this Act
10    asserting or defending a business  broker's  claim  of  lien,
11    including  reasonable attorneys' fees, costs, and prejudgment
12    interest interests due to  the  prevailing  party,  shall  be
13    borne  by the nonprevailing party or parties.  When more than
14    one party is responsible for  costs,  fees,  and  prejudgment
15    interest,  the costs, fees, and prejudgment interest shall be
16    equitably apportioned by the court  among  those  responsible
17    parties.
18        (o)  Prior   recorded  liens  and  mortgages  shall  have
19    priority over a broker's lien.  A prior recorded  lien  shall
20    include,  without  limitation,  (i)  a  valid mechanic's lien
21    claim, that is recorded subsequent to the broker's notice  of
22    lien  but which relates back to a date prior to the recording
23    date of the broker's notice of lien and (ii)  prior  recorded
24    liens securing revolving credit or and future advances under
25    of  construction loans as described in Section 15-1302 of the
26    Code of Civil  Procedure,  and  (iii)  prior  recorded  liens
27    perfected under the Uniform Commercial Code.
28    (Source: P.A. 90-70, eff. 7-8-97.)

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