                                                                                   Digitally signed by
                                                                                   Reporter of Decisions
                              Illinois Official Reports                            Reason: I attest to the
                                                                                   accuracy and integrity
                                                                                   of this document
                                      Appellate Court                              Date: 2017.07.24
                                                                                   14:27:52 -05'00'




        Lake County Grading Co. v. Forever Construction, Inc., 2017 IL App (2d) 160359



Appellate Court          LAKE COUNTY GRADING COMPANY, LLC, Plaintiff-Appellant,
Caption                  v. FOREVER CONSTRUCTION, INC., FIRST MIDWEST BANK,
                         as Successor in Interest to Waukegan Savings Bank, THE CITY OF
                         WAUKEGAN, JORGE TORREZ, UNKNOWN OWNERS, and
                         NONRECORD CLAIMANTS, Defendants (First Midwest Bank,
                         Defendant-Appellee).



District & No.           Second District
                         Docket No. 2-16-0359



Filed                    May 19, 2017



Decision Under           Appeal from the Circuit Court of Lake County, No. 12-CH-885; the
Review                   Hon. Luis A. Berrones, Judge, presiding.



Judgment                 Reversed and remanded.


Counsel on               Bogdan Martinovich, of Ray & Glick, Ltd., of Libertyville, for
Appeal                   appellant.

                         William J. Serritella, Jr., Jonathan B. Amarilio, and Jillian S. Cole, of
                         Taft Stettinius & Hollister LLP, of Chicago, for appellee.
     Panel                    JUSTICE BURKE delivered the judgment of the court, with opinion.
                              Justices Hutchinson and Spence concurred in the judgment and
                              opinion.


                                               OPINION

¶1          Waukegan Savings Bank (Waukegan Savings) obtained a judgment of foreclosure on the
       property at 133 S. Genesee Street in Waukegan, which contained a Salvation Army
       warehouse (property). Waukegan Savings was the successful bidder at the sheriff’s sale and
       filed a motion to confirm the sale. Before confirmation, the warehouse was destroyed by fire.
       On behalf of Waukegan Savings, the City of Waukegan (City) hired plaintiff, Lake County
       Grading Company, LLC (LCG), to demolish the remains of the warehouse, and LCG
       recorded a mechanic’s lien upon completion of the work.
¶2          While Waukegan Savings’ motion to confirm the sale was pending in the mortgage
       foreclosure action, LCG filed this separate action against Waukegan Savings, asserting
       claims to foreclose on the mechanic’s lien and for breach of an oral or implied contract,
       unjust enrichment, and quantum meruit. While this action was pending, the sale was
       confirmed in the mortgage foreclosure action and Waukegan Savings received a judicial deed
       to the property. As a result of a takeover by the Federal Deposit Insurance Corporation
       (FDIC), defendant, First Midwest Bank (First Midwest), acquired all of Waukegan Savings’
       assets and liabilities, including the property. LCG added First Midwest as a defendant as the
       successor in interest to Waukegan Savings.
¶3          The trial court dismissed the mechanic’s lien claim, concluding that Waukegan Savings’
       foreclosure notice required LCG to intervene in the mortgage foreclosure action before
       confirmation of the sale and that, therefore, LCG could not pursue this separate action.
       Because LCG failed to intervene and challenge the confirmation, the court concluded that the
       lis pendens doctrine extinguished the claims.
¶4          LCG appeals from the dismissal of the mechanic’s lien claim and the denial of leave to
       amend to raise a claim for an equitable lien. LCG argues that it was not required to intervene
       in the mortgage foreclosure action because (1) Waukegan Savings was not a bona fide
       innocent third-party purchaser entitled to protection under the lis pendens doctrine, (2) LCG
       had no right to intervene because it lacked standing to challenge the sale confirmation, and
       (3) LCG is entitled to an equitable lien if it cannot recover under the Mechanics Lien Act
       (Act) (770 ILCS 60/0.01 et seq. (West 2012)).
¶5          First Midwest responds that (1) we lack jurisdiction, (2) LCG’s arguments are forfeited,
       (3) the lis pendens doctrine bars the mechanic’s lien claim because LCG had a right to
       intervene in the mortgage foreclosure action, (4) the mechanic’s lien is technically defective,
       and (5) an equitable lien is inappropriate because LCG could have, but failed to, perfect its
       statutory mechanic’s lien.
¶6          We hold that (1) we have jurisdiction over the appeal and LCG has not forfeited its
       arguments; (2) Waukegan Savings was not a bona fide innocent third-party purchaser
       because, through its conduct, it induced LCG to perform the work and file this separate
       action; (3) LCG alternatively had a right to intervene in the mortgage foreclosure action but


                                                  -2-
       was not required to do so; and (4) the legal remedy of a statutory mechanic’s lien precluded
       an equitable lien as a potentially viable alternative claim for LCG. Accordingly, we reverse
       and remand.

¶7                                           I. BACKGROUND
¶8                                        A. Mortgage Foreclosure
¶9         As this is an appeal from the dismissal of the mechanic’s lien claim and the denial of
       leave to file a claim for an equitable lien, the relevant facts are taken from the pleadings. On
       November 1, 2006, Forever Construction, Inc., the owner of the property, was the guarantor
       on a real estate loan extended by Waukegan Savings. The Salvation Army warehouse on the
       property had fallen into disrepair and was abandoned. Forever Construction defaulted on the
       loan.
¶ 10       Waukegan Savings filed a mortgage foreclosure action on August 14, 2008. On
       September 2, 2008, Waukegan Savings recorded an amended notice of foreclosure (lis
       pendens) with the Lake County recorder of deeds. Under the lis pendens doctrine, codified in
       section 2-1901 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1901 (West 2012)), one
       who obtains an interest in property during the pendency of a suit affecting it, and who has
       constructive notice of the suit, is bound by the result of that litigation as if he or she had been
       a party from the outset. Waukegan Savings’ amended notice of foreclosure provided such
       constructive notice.
¶ 11       On December 10, 2010, Waukegan Savings obtained a judgment of foreclosure and
       became a mortgagee in possession. The judgment stated that the mortgage constituted a
       “valid, prior and paramount lien(s) upon the indicated interest(s) in the mortgaged real estate,
       which lien(s) is prior and superior to the right, title, interest, claim or lien of all parties and
       nonrecord claimants whose interests in the mortgaged real estate are terminated by this
       foreclosure.”
¶ 12       The redemption rights of Forever Construction expired on March 11, 2011. On March 15,
       2011, Waukegan Savings was the successful bidder at the sheriff’s sale. On April 5, 2011,
       Waukegan Savings filed a motion to confirm the sale but did not request a hearing.
¶ 13       On May 4, 2011, the warehouse was destroyed by fire. The City informed Waukegan
       Savings that the damaged structure must be removed immediately because it violated safety
       and building regulations. A mortgage provision authorized Waukegan Savings to eliminate
       code violations on the property, and the foreclosure judgment required Waukegan Savings to
       insure the property and make reasonably necessary repairs.
¶ 14       Representatives of Waukegan Savings allegedly assured the City’s building
       commissioner that Waukegan Savings would pay for the demolition and asked the
       commissioner to select a demolition contractor. The City had a longstanding business
       arrangement with LCG for demolition and debris removal. The City hired LCG on behalf of
       Waukegan Savings. LCG worked at the site from May 4, 2011, to June 3, 2011, resulting in a
       balance due of $112,098. On August 24, 2011, LCG recorded a mechanic’s lien against the
       property and served Waukegan Savings.




                                                    -3-
¶ 15                               B. Mechanic’s Lien Foreclosure
¶ 16       On February 14, 2012, Waukegan Savings served LCG with a demand under section
       34(a) of the Act (section 34 demand) (770 ILCS 60/34(a) (West 2012)) to foreclose on the
       lien or risk abandoning it, and LCG timely filed a complaint to initiate this action on
       February 22, 2012. Soon thereafter, Waukegan Savings requested a hearing on the motion to
       confirm the sale in the mortgage foreclosure action. On March 15, 2012, less than a month
       after LCG filed its mechanic’s lien action as demanded by Waukegan Savings, the trial court
       in the mortgage foreclosure action confirmed the sale, and Waukegan Savings received a
       judicial deed.
¶ 17       On October 11, 2012, after receiving the judicial deed, Waukegan Savings was seized by
       the FDIC and sold to First Midwest. The takeover is evidenced by an August 3, 2012,
       agreement between the FDIC and First Midwest to purchase virtually all of the assets,
       including the property.

¶ 18                                     1. Motion to Dismiss
¶ 19        On February 27, 2013, LCG filed its second amended complaint, naming First Midwest
       as a defendant, as the successor in interest to Waukegan Savings. The claims against First
       Midwest included foreclosure on the mechanic’s lien, breach of an oral or implied contract,
       unjust enrichment, and quantum meruit. On July 19, 2013, on First Midwest’s motion, the
       trial court dismissed the mechanic’s lien, unjust enrichment, and quantum meruit claims but
       did not dismiss the contract claim. The court concluded that the lis pendens doctrine had
       required LCG to seek intervention in the mortgage foreclosure action and, because a final
       judgment had been entered in that case, the mechanic’s lien was invalid.

¶ 20                                    2. Motion to Reconsider
¶ 21        The matter proceeded for 19 months, during which LCG subpoenaed the file of First
       Midwest’s former attorneys. In it, LCG discovered Waukegan Savings’ section 34 demand.
¶ 22        On February 24, 2015, LCG filed a motion to reconsider the dismissal of the mechanic’s
       lien, unjust enrichment, and quantum meruit claims, arguing that the section 34 demand
       constituted newly discovered evidence and that the recent decision in Wells Fargo Bank, N.A.
       v. McCluskey, 2013 IL 115469, had changed the law. Specifically, LCG contended that
       McCluskey requires a party seeking to vacate a foreclosure judgment after a judicial sale to
       also seek to set aside the judicial sale, but that, because Waukegan Savings already had
       moved to confirm the sale, LCG’s only remedy in the mortgage foreclosure action was to
       object under section 15-1508(b) of the Illinois Mortgage Foreclosure Law (Foreclosure Law)
       (735 ILCS 5/15-1508(b) (West 2012)), which was “unavailable” to LCG because the statute
       relates merely to matters involving the sale. LCG concluded that (1) the doctrine of
       lis pendens did not require LCG to intervene in the mortgage foreclosure action and (2) LCG
       perfected its mechanic’s lien by complying with Waukegan Savings’ section 34 demand. The
       trial court concluded that McCluskey did not apply and denied the motion to reconsider on
       June 5, 2015.




                                                 -4-
¶ 23                                3. Motion to Amend Complaint
¶ 24        On July 24, 2015, the court granted in part and denied in part LCG’s motion for leave to
       file a third amended complaint. The court allowed amendment of the contract claim, which
       LCG said was based on “an implied-in-fact oral contract.” The court denied leave to file a
       new claim for an equitable lien and to amend the mechanic’s lien claim to add a reference to
       the section 34 demand.

¶ 25                          4. Cross-Motions for Summary Judgment
¶ 26       On December 14, 2015, LCG moved for summary judgment on the contract claim, and
       on March 7, 2016, First Midwest filed a cross-motion for summary judgment. The trial court
       entered summary judgment for First Midwest on April 15, 2016, disposing of the last
       pending claim. This timely appeal followed.

¶ 27                                           II. ANALYSIS
¶ 28       Rather than petitioning to intervene in the mortgage foreclosure action, LCG filed this
       action for, inter alia, foreclosure on the mechanic’s lien. The purpose of the Act is to permit a
       lien upon premises where a benefit has been received by the owner and the value or condition
       of the property has been increased or improved by the furnishing of labor and materials.
       North Shore Community Bank & Trust Co. v. Sheffield Wellington LLC, 2014 IL App (1st)
       123784, ¶ 81.
¶ 29       On appeal, LCG argues that the lis pendens doctrine did not require it to intervene in the
       mortgage foreclosure action and that it may pursue its mechanic’s lien in this separate action
       under the Act. First, LCG contends that Waukegan Savings was not a bona fide innocent
       third-party purchaser because (1) Waukegan Savings, rather than some other party,
       contracted for the demolition work and (2) Waukegan Savings served LCG with the section
       34 demand to foreclose on the mechanic’s lien. Second, LCG contends that it could not
       intervene because it lacked standing to challenge the sale confirmation under section
       15-1508(b) of the Foreclosure Law (735 ILCS 5/15-1508(b) (West 2012)). Third, LCG
       alternatively argues that it is entitled to an equitable lien if it cannot recover under the Act.
       LCG does not challenge the summary judgment on the breach of contract claim or the
       dismissal of the unjust enrichment and quantum meruit claims.
¶ 30       First Midwest responds that (1) we lack jurisdiction because LCG raised its theories
       regarding section 34 of the Act and section 15-1508(b) of the Foreclosure Law for the first
       time in its motion to reconsider and because the notice of appeal fails to specify the order
       denying that motion; (2) alternatively, those arguments are forfeited because they were raised
       for the first time in the motion to reconsider; (3) the lis pendens doctrine renders the
       mechanic’s lien invalid because Waukegan Savings was a bona fide purchaser and LCG had
       a right to intervene in the foreclosure action; (4) the mechanic’s lien is defective because it
       fails to comply with section 7 of the Act (770 ILCS 60/7 (West 2012)); and (5) an equitable
       lien is inappropriate because LCG could have, but failed to, pursue its legal remedy of
       perfecting its mechanic’s lien under the Act.




                                                   -5-
¶ 31                                          A. Jurisdiction
¶ 32       On May 13, 2016, LCG filed an amended notice of appeal specifying three orders from
       which it appeals. First, the July 19, 2013, order that dismissed the mechanic’s lien, unjust
       enrichment, and quantum meruit claims of the second amended complaint. Second, the July
       24, 2015, order that denied in part LCG’s motion for leave to file a third amended complaint.
       Third, the April 15, 2016, order that granted First Midwest summary judgment on the
       contract claim. In its brief, LCG challenges only the adverse rulings regarding the claims for
       a statutory mechanic’s lien and an equitable lien.
¶ 33       First Midwest argues that we lack jurisdiction to consider the appeal because, although
       LCG’s legal arguments relating the mechanic’s lien to McCluskey and section 15-1508(b) of
       the Foreclosure Law were set forth in the motion to reconsider, the notice of appeal failed to
       specify the order denying that motion. In support, First Midwest cites Illinois Supreme Court
       Rule 303(b)(2) (eff. June 4, 2008), which provides that a notice of appeal “shall specify the
       judgment or part thereof or other orders appealed from and the relief sought from the
       reviewing court.”
¶ 34       A notice of appeal is a procedural device filed with the trial court that, when timely filed,
       vests jurisdiction in the appellate court to permit review of the trial court’s judgment such
       that it may be affirmed, reversed, or modified. General Motors Corp. v. Pappas, 242 Ill. 2d
       163, 173 (2011). The supreme court has reiterated that a notice of appeal must be specific as
       to the judgments being submitted for review but that “[t]he notice of appeal should be
       considered as a whole and will be deemed sufficient to confer jurisdiction on an appellate
       court when it fairly and adequately sets out the judgment complained of and the relief sought,
       thus advising the successful litigant of the nature of the appeal.” (Internal quotation marks
       omitted.) General Motors Corp., 242 Ill. 2d at 176. A defect in the notice will not be deemed
       fatal where the deficiency is of form, rather than of substance, and there is no prejudice to the
       appellee. General Motors Corp., 242 Ill. 2d at 176.
¶ 35       The briefs, not the notice of appeal itself, specify the precise points to be relied on for
       reversal. Northbrook Bank & Trust Co. v. 2120 Division LLC, 2015 IL App (1st) 133426, ¶ 7.
       The notice of appeal is to be liberally construed and serves the purpose of informing the
       prevailing party in the trial court that the unsuccessful litigant seeks a review by a higher
       court. Northbrook Bank & Trust Co., 2015 IL App (1st) 133426, ¶ 7.
¶ 36       First Midwest attempts to exclude certain arguments from appellate review by
       unreasonably parsing the legal theories that LCG raised in response to the motion to dismiss
       and in the motion to reconsider. We construe the notice of appeal liberally and conclude that
       it adequately identified the judgment appealed from and informed First Midwest of the issues
       to be raised. From the start, this dispute has turned on how the lis pendens in the mortgage
       foreclosure action applies to LCG’s mechanic’s lien. The notice specifies the July 19, 2013,
       dismissal order in which the trial court concluded that, once the mortgage foreclosure action
       culminated in the confirmation of sale, the doctrine of lis pendens rendered the mechanic’s
       lien invalid. In its appellate brief, LCG argues that the doctrine does not bar a separate
       mechanic’s lien foreclosure action. In the notice and in its brief, LCG seeks reinstatement of
       the claim for a mechanic’s lien and a remand to the trial court for further proceedings. Thus,
       one can hardly argue that First Midwest has been surprised or prejudiced by the notice’s
       failure to specify the order denying the motion to reconsider.


                                                   -6-
¶ 37        Moreover, the notice specifies the July 24, 2015, order that denied LCG leave to amend
       the mechanic’s lien claim. The proposed amendment was a reference to the section 34
       demand, which was also raised in the motion to reconsider. The denial of the motion to
       reconsider was a step in the procedural progression to the July 24, 2015, order denying leave
       to amend the mechanic’s lien claim. Burtell v. First Charter Service Corp., 76 Ill. 2d 427,
       435-36 (1979) (an appeal from a final judgment includes every previous ruling that
       represents a “step in the procedural progression leading to the judgment specified” and every
       “preliminary determination necessary to the ultimate relief”).
¶ 38        First Midwest cites General Motors Corp. for the proposition that the appellate brief’s
       reference to the motion to reconsider does not confer appellate jurisdiction, but First
       Midwest’s reliance is misplaced. In General Motors Corp., the supreme court held that the
       appellant’s “failure to file a proper notice of appeal in this case could not be remedied by
       addressing the issue in her appellate brief.” General Motors Corp., 242 Ill. 2d at 178.
       However, the appellant in that case attempted to broaden the scope of review by specifying
       an issue in the appellate docketing statement (see Ill. S. Ct. R. 312(a) (eff. Feb. 10, 2006))
       that was unrelated to the orders mentioned in the notice of appeal. The supreme court held
       that it is axiomatic that a docketing statement does not confer jurisdiction on the appellate
       court and that the notice of appeal requires additional specificity. General Motors Corp., 242
       Ill. 2d at 177-78. In General Motors Corp., the issue mentioned in the docketing statement
       was unrelated to the orders mentioned in the notice. LCG’s docketing statement is not at
       issue here, and the underlying issue has been the same throughout the proceedings.
¶ 39        First Midwest’s jurisdictional argument is flawed because the orders cited in the notice of
       appeal address the dismissal of the mechanic’s lien claim, and therefore, the issue is properly
       before this court. The effect of LCG’s delay in raising certain arguments is a question of
       forfeiture, not jurisdiction.

¶ 40                                            B. Forfeiture
¶ 41        First Midwest argues that LCG has forfeited its argument relating the mechanic’s lien to
       McCluskey and section 15-1508(b) because it was raised for the first time in the motion to
       reconsider. We disagree. Section 2-1203 of the Code provides that “[i]n all cases tried
       without a jury, any party may, within 30 days after the entry of the judgment or within any
       further time the court may allow within the 30 days or any extensions thereof, file a motion
       for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for
       other relief.” 735 ILCS 5/2-1203 (West 2014).
¶ 42        First Midwest relies on Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 36,
       which held that an issue related to a pleading was forfeited because it was argued for the first
       time in the motion to reconsider. The supreme court determined that the issue could have
       been raised sooner and did not further the purpose of a motion to reconsider, to bring to the
       court’s attention newly discovered evidence that was not available at the time of the original
       hearing, changes in existing law, or errors in the court’s application of the law. Evanston
       Insurance Co., 2014 IL 114271, ¶ 36. First, LCG’s motion to reconsider arguably fulfilled
       that purpose by citing McCluskey as a change in the law and the section 34 demand as newly
       discovered evidence. Second, First Midwest does not assert that it argued forfeiture when the
       trial court heard LCG’s motion to reconsider, and First Midwest’s omission could be
       characterized as its own procedural default. Third, the doctrine of forfeiture is an admonition

                                                  -7-
       to the parties, not a limitation on the reviewing court’s jurisdiction, and the reviewing court
       may consider an argument not timely raised, particularly where, as here, the issue is one of
       law and is fully briefed by the parties on appeal. See Committee for Educational Rights v.
       Edgar, 174 Ill. 2d 1, 11 (1996).

¶ 43                                        C. Mechanic’s Lien
¶ 44                                       1. Standard of Review
¶ 45       Pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)), First
       Midwest filed a combined motion under sections 2-615 and 2-619 to dismiss the second
       amended complaint. The trial court dismissed the mechanic’s lien claim in the second
       amended complaint with prejudice.
¶ 46       Although the motion to dismiss did not cite a specific section under which the mechanic’s
       lien claim could be dismissed, section 2-619(a)(9) allows involuntary dismissal where there
       is other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS
       5/2-619(a)(9) (West 2014). First Midwest argued that the mechanic’s lien claim was barred
       by the final judgment in the mortgage foreclosure action. First Midwest alternatively alleged
       that the claim should be dismissed under “section 2-619” because it misidentified the owner
       of the property and the parties to the demolition contract.
¶ 47       A motion to dismiss filed pursuant to section 2-619 of the Code admits the legal
       sufficiency of the complaint but raises a defense that allegedly defeats the complaint. Patrick
       Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. When reviewing a motion filed
       under section 2-619, we accept as true all well-pleaded facts in the complaint, as well as all
       reasonable inferences that arise from them, but we will disregard all legal and factual
       conclusions that are not supported by specific factual allegations. Patrick Engineering, 2012
       IL 113148, ¶ 31. We review de novo a trial court’s decision on a motion to dismiss pursuant
       to section 2-619. Patrick Engineering, 2012 IL 113148, ¶ 31.

¶ 48                              2. First Midwest as Successor in Interest
¶ 49        LCG contends that First Midwest is responsible for not only the mechanic’s lien but also
       Waukegan Savings’ underlying conduct regarding the demolition work and the ensuing
       litigation. We agree with LCG that First Midwest stands in the shoes of Waukegan Savings
       as its successor in interest.
¶ 50        As noted, the FDIC takeover is evidenced by an August 3, 2012, agreement between the
       FDIC and First Midwest to purchase virtually all of Waukegan Savings’ assets, including the
       property. Section 2.1(b) of the purchase agreement provides that First Midwest assumed at
       book value and agreed to “pay, perform, and discharge, all of the following liabilities” of
       Waukegan Savings, including “liabilities of indebtedness secured by mortgages, deeds of
       trust, chattel mortgages, security interests, or other liens on or affecting any Assets.” In turn,
       section 1.3 defines “lien” in part as “any mortgage, lien, pledge, charge, assignment for
       security purposes, security interest or encumbrance of any kind with respect to an Asset.”
¶ 51        The language of the purchase agreement is unambiguous and broad. Under the plain and
       ordinary meaning, First Midwest assumed and agreed to pay the indebtedness of “liens”
       affecting its newly acquired assets, including the property. See Downs v. Steel & Craft
       Builders, Inc., 358 Ill. App. 3d 201, 205 (2005) (when interpreting a contract, we must


                                                   -8-
       consider the entire document to give effect to the parties’ intent as determined by the plain
       and ordinary meaning of the language of the contract). We interpret the purchase agreement
       as transferring to First Midwest the potential indebtedness associated with LCG’s mechanic’s
       lien and proposed equitable lien.

¶ 52                              3. Lis Pendens and Section 34 Demand
¶ 53        First Midwest argues that the lis pendens doctrine invalidated the mechanic’s lien
       because LCG had notice of the mortgage foreclosure action and failed to petition to
       intervene. A lis pendens notice is intended to alert persons that the property in question is
       involved in litigation. Kurtz v. Hubbard, 2012 IL App (1st) 111360, ¶ 15. “ ‘The purpose of
       the doctrine of lis pendens is the avoidance of endless litigation of property rights
       precipitated by the transfer of interests in the property after litigation has begun. [Citation.]
       This purpose is achieved by conclusively binding the party receiving the interest to the result
       of the litigation as though he or she had been a party from the outset.’ ” City of Chicago v.
       Ramirez, 366 Ill. App. 3d 935, 944 (2006) (quoting RTS Plumbing Co. v. DeFazio, 180 Ill.
       App. 3d 1037, 1041 (1989)).
¶ 54        At common law, lis pendens was an equitable remedy that bound purchasers or
       encumbrancers of property to the results of pending lawsuits that affected the title to or lien
       on that property. First Midwest v. Pogge, 293 Ill. App. 3d 359, 363 (1997). The mere
       existence of a pending action provided “notice to the world,” and the subsequent purchaser or
       encumbrancer was bound by the findings of that suit as if he or she were a party, regardless
       of actual or constructive notice. Pogge, 293 Ill. App. 3d at 363.
¶ 55        The legislature codified the lis pendens doctrine to ameliorate its harsh effects.
       Subsequent purchasers or encumbrancers, like LCG, who have an interest in real property are
       not bound by the results of pending suits unless they have “constructive notice” of the
       pending proceedings. 735 ILCS 5/2-1901 (West 2012). Before there can be “constructive
       notice,” a lis pendens notice must be filed in the recorder’s office. 735 ILCS 5/2-1901 (West
       2012).
¶ 56        The statute, however, deals only with constructive notice. Parties with actual notice of
       pending proceedings affecting the property are also subject to the lis pendens doctrine, even
       if there has been no compliance with section 2-1901 of the Code. Pogge, 293 Ill. App. 3d at
       363-64. The doctrine of lis pendens is meant to protect innocent subsequent purchasers. It
       would be inconsistent to bind those with constructive notice of the pending action but not
       those with actual notice. Pogge, 293 Ill. App. 3d at 364.
¶ 57        Section 15-1503 of the Foreclosure Law governs the filing of lis pendens notices in
       mortgage foreclosure actions, and it provides in relevant part as follows:
                    “(a) A notice of foreclosure, whether the foreclosure is initiated by complaint or
                counterclaim, made in accordance with this Section and recorded in the county in
                which the mortgaged real estate is located shall be constructive notice of the
                pendency of the foreclosure to every person claiming an interest in or lien on the
                mortgaged real estate, whose interest or lien has not been recorded prior to the
                recording of such notice of foreclosure. *** A notice which complies with this
                Section shall be deemed to comply with section 2-1901 of the Code of Civil
                Procedure and shall have the same effect as a notice filed pursuant to that Section;
                however, a notice which complies with Section 2-1901 shall not be constructive

                                                   -9-
               notice unless it also complies with the requirements of this Section.” 735 ILCS
               5/15-1503 (West 2012).
¶ 58       LCG does not allege any defects in Waukegan Savings’ amended notice of foreclosure,
       and because the recording of the notice predated the recording of LCG’s mechanic’s lien,
       LCG is deemed to have had constructive notice of the pendency of the foreclosure action.
       735 ILCS 5/15-1503 (West 2012).
¶ 59       First Midwest relies on R.W. Boeker Co. v. Eagle Bank of Madison County, 170 Ill. App.
       3d 693 (1988), where two mortgage holders filed a complaint against the owner of a sports
       facility to foreclose their mortgages. A lis pendens notice of the pending foreclosure
       proceedings was recorded, and “unknown owners” of the property were served. R.W. Boeker
       Co., 170 Ill. App. 3d at 694.
¶ 60       During the pendency of the proceedings, the facility’s owner persuaded a contractor to
       furnish labor and materials necessary to improve the facility, and the contractor worked for
       seven months. The mortgage foreclosure action went to trial. The contractor recorded its
       claim for a mechanic’s lien, and a judgment of mortgage foreclosure was entered two days
       later. One of the mortgage holders purchased the property and obtained a judicial deed. R.W.
       Boeker Co., 170 Ill. App. 3d at 695.
¶ 61       Less than a month later, the contractor filed its complaint against the purchaser to
       foreclose its mechanic’s lien. The contractor claimed to be unaware of the foreclosure
       proceedings, while the purchaser allegedly knew that the contractor was performing the
       work. The trial court held that the mechanic’s lien claim was extinguished by the foreclosure
       sale and the issuance of a judicial deed. The court concluded that the contractor’s cause of
       action was barred by the judgment in the mortgage foreclosure proceedings. The court
       therefore dismissed the complaint. R.W. Boeker Co., 170 Ill. App. 3d at 696.
¶ 62       On appeal, the appellate court held, inter alia, that the lis pendens notice gave the
       contractor constructive notice of the mortgage foreclosure proceedings and that the
       contractor “consequently acquired its rights pendente lite.” R.W. Boeker Co., 170 Ill. App. 3d
       at 698. The appellate court concluded that, because the lis pendens statute applies
       unequivocally to all interests in or liens upon property, regardless of their nature, the
       contractor was bound by the mortgage foreclosure proceedings and had no claim for any kind
       of a lien on the sports facility property. R.W. Boeker Co., 170 Ill. App. 3d at 698.
¶ 63       Here, Waukegan Savings hired LCG to work on the property from May 4, 2011, to June
       3, 2011, and LCG filed a mechanic’s lien on August 24, 2011. Six months later, on February
       14, 2012, Waukegan Savings demanded under section 34 that LCG foreclose on the lien
       within 30 days. On February 22, 2012, LCG timely filed this action, as demanded by
       Waukegan Savings. Meanwhile, on March 15, 2012, Waukegan Savings sought a hearing
       and obtained a confirmation of sale in the mortgage foreclosure action without LCG
       petitioning to intervene.
¶ 64       At first blush, a straightforward application of the lis pendens doctrine would appear to
       protect First Midwest against any claim not raised during the pendency of the mortgage
       foreclosure action. However, unlike the purchaser in R.W. Boeker Co., Waukegan Savings,
       through its conduct, waived lis pendens protection against outside claims by LCG. In R.W.
       Boeker Co., the facility owner, not the purchaser, persuaded the contractor to perform the
       work. Here, Waukegan Savings induced LCG to provide its services and then demanded
       under section 34 that LCG commence suit to enforce the lien within 30 days, which LCG did.

                                                 - 10 -
¶ 65        Section 34 of the Act provides a method for a property owner to force the issue on the
       validity of claims already filed and to clear a cloud on the owner’s property from the filing of
       a lien. Section 34 provides that “[u]pon written demand of the owner, lienor, or any person
       interested in the real estate *** served on the person claiming the lien ***, requiring suit to
       be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be
       commenced or answer filed within 30 days thereafter, or the lien shall be forfeited.” 770
       ILCS 60/34(a) (West 2012).
¶ 66        Under section 34, the lienholder can be demanded to (1) commence suit to enforce the
       lien or (2) file an answer in a pending suit. Here, the mortgage foreclosure action was
       pending when Waukegan Savings made its section 34 demand, but LCG could not file an
       answer because it was not a party to that action. LCG filed this action to comply with section
       34 and avoid forfeiting its claim. See 770 ILCS 60/34(a) (West 2012); TSP-Hope, Inc. v.
       Home Innovators of Illinois, 382 Ill. App. 3d 1171, 1175-76 (2008) (a lienholder forfeits its
       mechanic’s lien if it fails to commence an action to foreclose the lien within 30 days after
       receipt of the owner’s written demand to sue, as required by section 34).
¶ 67        If LCG had petitioned to intervene in the mortgage foreclosure action instead, First
       Midwest could have argued that LCG’s technical noncompliance with section 34 resulted in
       forfeiture of the lien. Indeed, Waukegan Savings’ section 34 demand followed the statute,
       stating, “[i]f you fail to release the lien or fail to file suit, we will seek to have the Court
       remove the lien.” (Emphasis added.) As was its right, Waukegan Savings demanded that
       LCG preserve and resolve the lien specifically through this action. The section 34 demand
       neither asked LCG to pursue the claim generally (which theoretically would encompass
       intervention in the mortgage foreclosure action) nor communicated any assurance that
       Waukegan Savings would acquiesce to LCG pursuing the lien in the mortgage foreclosure
       action.
¶ 68        There is precedent for preventing a property owner from pursuing a litigation strategy
       that is inconsistent with its demand under section 34. Although the lis pendens doctrine was
       not at issue, this court held that a party making a section 34 demand waives its right to
       compel arbitration. Illinois Concrete-I.C.I., Inc. v. Storefitters, Inc., 397 Ill. App. 3d 798, 803
       (2010).
¶ 69        Accepting as true all well-pleaded facts, as well as all reasonable inferences that arise
       from them, we conclude that Waukegan Savings was not an innocent purchaser for whom
       protection is intended under the lis pendens doctrine. “[T]he filing of lis pendens notice is
       designed to protect a plaintiff from third persons who might acquire, during the pendency of
       litigation, interest in the subject matter of the litigation such as would preclude the court from
       granting the plaintiff the requested relief.” Admiral Builders Corp. v. Robert Hall Village, 101
       Ill. App. 3d 132, 136 (1981) (citing 51 Am. Jur. 2d Lis Pendens § 1 (1970), and E&E
       Hauling, Inc. v. County of Du Page, 77 Ill. App. 3d 1017, 1023 (1979)). Enforcing the
       lis pendens doctrine in favor of Waukegan Savings and against LCG would not further this
       purpose.
¶ 70        Waukegan Savings allegedly induced LCG to provide its services during the pendency of
       the mortgage foreclosure action and then to file this action to preserve and resolve the
       mechanic’s lien. Less than a month after LCG filed this suit as requested, Waukegan Savings
       attempted to extinguish the claim by resurrecting its 11-month-old motion to confirm the sale
       in the mortgage foreclosure action. Now, First Midwest feigns surprise and asserts prejudice

                                                   - 11 -
       because LCG followed the section 34 demand rather than intervening in the mortgage
       foreclosure action, which might have resulted in forfeiture of the claim. To invoke the
       lis pendens doctrine in denying the claim’s validity under these circumstances is legal
       gamesmanship.
¶ 71        At oral argument, First Midwest proposed that, to preserve its mechanic’s lien, LCG
       should have filed this action and petitioned to intervene in the mortgage foreclosure action.
       While this would have been the most prudent course, requiring those redundant actions
       would (1) impose an undue burden on LCG, (2) excuse the affirmative conduct by which
       Waukegan Savings induced LCG to perform the work and file this action, and (3) not further
       the lis pendens purpose of protecting a bona fide innocent third-party purchaser against
       outside claims.
¶ 72        We emphasize that, under the lis pendens doctrine, the confirmation of sale extinguished
       all outside claims other than LCG’s claims arising from its dealings with Waukegan Savings.
       Our holding is limited to these unusual circumstances.

¶ 73                          4. Intervention in Mortgage Foreclosure Action
¶ 74       LCG argues that this action was necessary because LCG lacked standing to pursue its
       claim in the mortgage foreclosure action. As mentioned, First Midwest responds that LCG
       not only had standing but was required to intervene. We conclude that LCG could have
       intervened under the Foreclosure Law, but was not required to do so, because Waukegan
       Savings had waived its lis pendens protection by demanding this separate action.
¶ 75       The general rule for intervention is found in section 2-408 of the Code, which allows, in
       certain circumstances, nonparties to intervene in proceedings. 735 ILCS 5/2-408 (West
       2012); MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 15. The statute recognizes that
       intervention may be either permissive or of right, but in either circumstance, a timely
       application to intervene must be made. McNeal, 2016 IL App (1st) 150465, ¶ 15.
       Specifically, section 15-1501 allows a nonparty to intervene in foreclosure proceedings,
       either by right or in the court’s discretion, depending on the circumstances, until an order
       confirming the sale is entered. 735 ILCS 5/15-1501 (West 2012); McNeal, 2016 IL App (1st)
       150465, ¶ 15.
¶ 76       Section 15-1501(d) gave LCG the right to intervene in the foreclosure proceedings. 735
       ILCS 5/15-1501(d) (West 2012) (“Any person who has or claims an interest in real estate
       which is the subject of a foreclosure *** shall have an unconditional right to appear and
       become a party in such foreclosure in accordance with subsection (e) of Section 15-1501
       ***.”). In turn, section 15-1501(e)(3) provides in part that “[a]fter the sale of the mortgaged
       real estate in accordance with a judgment of foreclosure and prior to the entry of an order
       confirming the sale, a person who has or claims an interest in the mortgaged real estate, may
       appear and become a party, on such terms as the court may deem just, for the sole purpose of
       claiming an interest in the proceeds of sale.” 735 ILCS 5/15-1501(e)(3) (West 2012). Thus,
       LCG’s grounds for intervention would have been to recover the debt from the sale proceeds
       by challenging the foreclosure judgment against Forever Construction, challenging
       Waukegan Savings’ motion for confirmation of the sale, or both.
¶ 77       In McCluskey, our supreme court held that, prior to filing a motion to confirm a sale, a
       borrower may seek to vacate the default judgment of foreclosure under the standards set forth
       in section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2012)). After the motion to

                                                 - 12 -
       confirm has been filed, the borrower’s arguments are limited by section 15-1508(b) of the
       Foreclosure Law (735 ILCS 5/15-1508(b) (West 2012)). McCluskey, 2013 IL 115469, ¶ 27.
       Here, LCG did not begin working on the property, and its interest in the property did not
       accrue, until after Waukegan Savings moved to confirm the sale. Thus, if LCG had
       intervened to foreclose its mechanic’s lien, its arguments would have been limited by section
       15-1508(b) of the Foreclosure Law.
¶ 78       Section 15-1508(b) of the Foreclosure Law provides in relevant part that, “[u]nless the
       court finds that (i) a notice required in accordance with subsection (c) of Section 15-1507
       was not given, (ii) the terms of sale were unconscionable, (iii) the sale was conducted
       fraudulently, or (iv) justice was otherwise not done, the court shall then enter an order
       confirming the sale.” (Emphasis added.) 735 ILCS 5/15-1508(b) (West 2012). Upon
       obtaining leave to intervene, LCG could have argued that under section 15-1508(b)(iv)
       justice would not be done if the sale were confirmed without accounting for its mechanic’s
       lien. See McCluskey, 2013 IL 115469, ¶ 25 (“[T]he justice provision under section
       15-1508(b)(iv) acts as a safety valve to allow the court to vacate the judicial sale and, in rare
       cases, the underlying judgment, based on traditional equitable principles.”). Thus, under the
       facts as alleged, LCG had a path to obtaining recovery in the context of the mortgage
       foreclosure action.
¶ 79       However, Waukegan Savings steered LCG off the intervention path. Waukegan Savings
       could have invoked section 15-1501(b)(9) of the Foreclosure Law to name LCG as a party in
       the mortgage foreclosure action. See 735 ILCS 5/15-1501(b)(9) (West 2012) (“Any party
       may join as a party any other person, although such person is not a necessary party, including
       *** [a]ny person who may have a lien under the Mechanic’s Lien Act.”). Instead, Waukegan
       Savings demanded under section 34 of the Act that LCG file this action.

¶ 80                                          5. Alleged Defects
¶ 81       Upon determining that the lis pendens doctrine did not extinguish LCG’s mechanic’s
       lien, we reach First Midwest’s argument that the lien nevertheless is defective for
       noncompliance with section 7 of the Act. First Midwest argues that the lien misidentified (1)
       the parties to the “purported oral agreement” for the demolition services and (2) the owners
       of the property. Section 7 provides in relevant part as follows:
               “No contractor shall be allowed to enforce such lien against or to the prejudice of any
               other [third-party] creditor or incumbrancer or purchaser, unless [(1)] within 4 months
               after completion *** he or she shall either bring an action to enforce his or her lien
               therefor or shall file in the office of the recorder *** a claim for lien, [(2)] verified by
               the affidavit of himself or herself, or his or her agent or employee, which shall consist
               of [(3)] a brief statement of the claimant’s contract, [(4)] the balance due after
               allowing all credits, and [(5)] a sufficiently correct description of the lot ***. *** No
               such lien shall be defeated to the proper amount thereof because of an error or
               overcharging on the part of any person claiming a lien therefor under this Act, unless
               it shall be shown that such error or overcharge is made with intent to defraud ***.”
               770 ILCS 60/7(a) (West 2012).
¶ 82       The lien states that LCG “hereby files a claim for lien against Forever Construction, Inc.
       and Waukegan Savings and Loan Association, hereinafter referred to as ‘owners.’ ” The lien
       also states that, “on May 4, 2011, [LCG] made an oral contract with said owners’ (1)

                                                    - 13 -
       authorized agent (2) to perform demolition of structure and removal of debris for the building
       (3) erected on said land for the sum of $112,098.02 and on June 3, 2011, completed
       thereunder (4) all work.”
¶ 83        First Midwest contends that the lien is invalid because it misidentified Waukegan Savings
       as an owner of the property when it was only a mortgagee. The complaint alleged that
       Waukegan Savings asserted ownership when the work was performed and that it
       subsequently received a judicial deed to the property. Upon expiration of its right of
       redemption on March 11, 2011, Forever Construction’s ownership was reduced to bare legal
       title. Thereafter, Waukegan Savings took possession, was the successful bidder at the
       sheriff’s sale, and allegedly contracted for the demolition work under the authority of the
       foreclosure judgment and the terms of the mortgage. LCG’s identification of Waukegan
       Savings as an owner is understandable, as Waukegan Savings acted as the owner or the agent
       of the owner in its dealings with LCG. At all relevant times, either Forever Construction or
       Waukegan Savings had title to the property, and the lien identified both as owners, even
       though Waukegan Savings technically was not an owner when the lien was recorded. First
       Midwest cites no authority for the proposition that a lien is invalid because it misidentifies a
       nonowner, even when the actual owner is accurately identified in compliance with section 7.
       A point not argued or supported by citation to relevant authority fails to satisfy the
       requirements of Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). See Vancura v.
       Katris, 238 Ill. 2d 352, 370 (2010) (“Both argument and citation to relevant authority are
       required. An issue that is merely listed or included in a vague allegation of error is not
       ‘argued’ and will not satisfy the requirements of the rule.”). To the extent that Waukegan
       Savings was technically misidentified as an owner because it had not acquired title by the
       time the lien was filed, its inclusion in the lien was mere surplusage and any error under
       section 7 was de minimis and not prejudicial.
¶ 84        First Midwest also asserts, without citation to the record, that the lien misidentified the
       parties to the demolition agreement because “the pleadings and affidavits filed in this case
       allege that Waukegan Savings and the City were the only parties” to the agreement.
       (Emphasis in original.) First Midwest then argues, without citation to authority, that the lien
       was fatally defective because “the Owner was never alleged to be a party to the Purported
       Oral Agreement.” Our review shows that LCG consistently has alleged that it entered into the
       agreement with the successor in interest of First Midwest, Waukegan Savings. The lien states
       that LCG entered into the oral contract with the owners’ authorized agent. At minimum,
       Waukegan Savings was acting as an agent of Forever Construction when the foreclosure
       judgment and the mortgage authorized the bank to make repairs that were reasonably
       necessary for the preservation of the property. The lien, the pleadings, and the affidavits have
       consistently identified Waukegan Savings, acting on behalf of Forever Construction, as a
       party to the demolition agreement. We reject First Midwest’s claim that the lien violated
       section 7 by misidentifying the parties to the demolition agreement.

¶ 85                                       D. Equitable Lien
¶ 86       Finally, we consider whether the trial court erred in denying LCG leave to file a third
       amended complaint that included a claim for an equitable lien. The right to amend a
       complaint is not absolute but is a matter within the trial court’s discretion. CitiMortgage, Inc.
       v. Parille, 2016 IL App (2d) 150286, ¶ 44. Accordingly, we will not reverse the trial court’s

                                                  - 14 -
       decision absent an abuse of that discretion. “A court abuses its discretion only if it acts
       arbitrarily, without the employment of conscientious judgment, exceeds the bounds of reason
       and ignores recognized principles of law; or if no reasonable person would take the position
       adopted by the court.” Payne v. Hall, 2013 IL App (1st) 113519, ¶ 12.
¶ 87        Generally, a trial court should exercise its discretion liberally in favor of allowing
       amendments to pleadings if doing so will further the ends of justice, and the court should
       consider, among other things, whether the proposed amendment would cure the defective
       pleading or state a claim. Parille, 2016 IL App (2d) 150286, ¶ 44. Here, the trial court did not
       abuse its discretion because the proposed claim for an equitable lien was precluded by the
       availability of a legal remedy.
¶ 88        In R.W. Boeker Co., where the sports facility owner persuaded the contactor to work on
       the property despite the lis pendens notice of the mortgage foreclosure proceedings, the
       contractor argued on appeal that it was entitled to recover the reasonable value of its
       improvements under an equitable lien theory. R.W. Boeker Co., 170 Ill. App. 3d at 696. The
       appellate court determined that the equitable lien issue was not properly before it because (1)
       the complaint was by its terms an action to foreclose a mechanic’s lien and (2) the contractor
       raised the equitable lien theory for the first time on appeal. R.W. Boeker Co., 170 Ill. App. 3d
       at 696.
¶ 89        In dicta, the court addressed the merits, noting that the essential elements of an equitable
       lien are “(1) a debt, duty or obligation owing by one person to another, and (2) an identifiable
       res to which that obligation fastens.” R.W. Boeker Co., 170 Ill. App. 3d at 697. The court
       determined that no obligation existed between the contractor and the first mortgage holder,
       who purchased the property at the judicial sale. Noting the well-settled principle that “[i]t is
       true that if a stranger enters upon the property of another and makes improvements, and the
       owner of that property stands by and permits the stranger to expend money in improving his
       land, then the owner may be compelled to pay for such improvements,” the court remarked
       that the purchaser was not an owner when the contractor improved the sports facility and that
       the purchaser’s “sole interest in the property was that of lienholder.” R.W. Boeker Co., 170
       Ill. App. 3d at 697.
¶ 90        The court emphasized that, until delivery of the judicial deed, the purchaser had acquired
       no title to the property, either legal or equitable, and simply did not have a sufficient
       ownership interest to prevent the contractor’s expenditure of time and money. Moreover, the
       purchaser was not a party to the contract with the sports facility owner. R.W. Boeker Co., 170
       Ill. App. 3d at 697.
¶ 91        Unlike the purchaser in R.W. Boeker Co., Waukegan Savings had a substantial interest in
       the property when LCG performed the demolition work. A mortgage provision authorized
       Waukegan Savings to eliminate code violations, and following the December 10, 2010,
       judgment of foreclosure, Waukegan Savings became a mortgagee in possession. The
       judgment required Waukegan Savings to insure the property and make reasonably necessary
       repairs. Then, when the warehouse burned down, Waukegan Savings allegedly promised to
       pay for the demolition and asked the City to select a demolition contractor. The City hired
       LCG on the bank’s behalf. Thus, Waukegan Savings had control over LCG’s expenditure of
       time and money in improving the property.
¶ 92        However, an equitable lien cannot be imposed when a lienor fails to perfect its
       mechanic’s lien. R.W. Boeker Co., 170 Ill. App. 3d at 697. Because we have determined that

                                                  - 15 -
       LCG may pursue its mechanic’s lien claim, LCG has an adequate legal remedy. See First
       Bank of Roscoe v. Rinaldi, 262 Ill. App. 3d 179, 190 (1994) (although an equitable lien may
       be imposed in the absence of an express agreement out of considerations of fairness, there
       must be some ground for the intervention of equity, such as the absence of an adequate
       remedy at law). If LCG lacked the legal remedy of foreclosing on its mechanic’s lien, it
       potentially could have recovered under the theory of an equitable lien.

¶ 93                                         III. CONCLUSION
¶ 94        After filing its lis pendens notice of the mortgage foreclosure action, Waukegan Savings
       induced LCG to provide demolition services and then file this action to preserve and resolve
       its mechanic’s lien. Less than a month after LCG filed suit, as Waukegan Savings had
       demanded under section 34 of the Act, Waukegan Savings obtained a confirmation of sale in
       the mortgage foreclosure action to extinguish all outside claims. Under these unique
       circumstances as alleged by LCG, we hold that Waukegan Savings was not a bona fide
       innocent third-party purchaser of the property and was not entitled to protection under the
       lis pendens doctrine against LCG’s outside mechanic’s lien claim. Although LCG could have
       pursued its mechanic’s lien through intervention in the mortgage foreclosure action, we hold
       that it was not required to do so. Waukegan Savings’ invocation of section 34 mandated this
       action to preserve the mechanic’s lien, and requiring a redundant intervention in the
       mortgage foreclosure action would have (1) imposed an undue burden on LCG, (2) excused
       the affirmative conduct by which Waukegan Savings induced LCG to perform the work and
       file this action, and (3) not furthered the lis pendens purpose of protecting a bona fide
       innocent third-party purchaser against outside claims.
¶ 95        The dismissal of the mechanic’s lien claim is reversed, and the cause is remanded for
       further proceedings on that count. However, the trial court did not abuse its discretion in
       denying LCG leave to add a claim for an equitable lien because such a claim was precluded
       by the availability of a legal remedy.

¶ 96      Reversed and remanded.




                                                - 16 -
