Opinion
19-cv-6920
10-18-2021
LABORERS' PENSION FUND, LABORERS' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY, THE CHICAGO LABORERS' DISTRICT COUNCIL RETIREE HEALTH AND WELFARE FUND and CATHERINE WENSKUS, not individually, but as Administrator of the Funds, Plaintiffs, v. BOYE JANITORIAL SERVICES, INC. an Illinois corporation, Defendant.
LEFKOW, JUDGE.
MOTION TO REINSTATE AND CONFESS JUDGMENT
G. Ryan Liska, Judge.
NOW COME Plaintiffs Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity and Catherine Wenskus, Administrator of the Funds (hereinafter collectively “Funds”), by and through their attorney, G. Ryan Liska, and hereby move this Court to Reinstate and Confess Judgment on the settlement Installment Note entered into by the parties in the above referenced matter. In support of this Motion, Plaintiffs state as follows:
1. On October 21, 2019 the Funds filed a Complaint against Boye Janitorial Service, Inc. ("Defendant”) to collect amounts found due and owing pursuant to a fringe benefit and union dues compliance audit covering the period April 2017 through March 31, 2019 and to collect unpaid fringe benefit reports for March 2019 and July 2019 through October 2019. In 1 addition, the lawsuit sought payment for accumulated liquidated damages which were assessed against the Defendant as a result of it failing to timely pay its fringe benefit monthly reports.
2. On March 13, 2020, the Funds and Defendant resolved this matter when the parties entered into an Installment Note wherein the Defendant agreed to pay $215, 187.38 over the course of thirty-six (36) consecutive months. A true and accurate copy of the Installment Note is attached as Exhibit 1.
3. As a result of the Parties' settlement, the Parties entered into an Agreed Stipulation to Dismiss wherein the Court dismissed the matter without prejudice and granted the Funds leave to reinstate the lawsuit on or before April 15, 2023. (See Docket Entry 18).
4. Paragraph 9 of the Installment Note provides "in the event the Company fails to timely make any payments described in this Note, all amounts described in paragraph 1 [of the Note] herein shall immediately become due on the 10th day following the date on which payment should have been received by the Funds under the terms of this Note. In such event the Company further agrees to pay all attorneys' fees and costs incurred by the Funds in any action to enforce any part of this Note”.
5. Paragraph 10 of the Installment Note provides the Funds with the right to accelerate the balance due on the Installment Note in the event the Company fails to remain current on its monthly fringe reporting and payments as set forth in the parties' collective bargaining agreement.
6. Paragraph 8 of the parties' Settlement Agreement provides that in the event of default, the Funds shall provide the Defendant with a written notice of default and that the Funds could accelerate the balance due on the installment note in the event the Defendant did not cure 2 the default within ten (10) days. (A true and accurate copy of the Settlement Agreement is attached as Exhibit 2.
7. On June 8, 2021, the Funds provided a written notice of default to the Defendant via email which advised Defendant it was in default of the note payment obligations and demanded Defendant to pay the March 2021 through June 2021 note payments by June 23, 2021. On June 23, 2021, the Funds granted Defendant an extension to make these payments by July 2, 2021. (A true and accurate copy of those emails are attached as Exhibits 3 and 4). On July 9, 2021, the Funds sent a follow up email requesting the Defendant cure the Installment Note default. (See Exhibit 5). To date, the Defendant has not cured the default despite numerous promises to do so.
8. Since the default emails were delivered, the August 2021 through October 2021 note payments became due. In addition, the Defendant failed to remit its June 2021 through August 2021 fringe benefit reports and payments. (See Exhibit 6 Christopher Affidavit, ¶ 3).
9. Defendant is in default of its Installment Note obligations by failing to timely remit its April 2021 through October 2021 payments totaling $32, 992.61 and by failing to remit its June 2021 through August 2021 monthly fringe benefit reports. (See Exhibit 6 Christopher Affidavit, ¶ 5)
10. By virtue of failing to timely make the April 2021 through October 2021 note payments and failing to cure the default within ten (10) days, the balance due on the Installment Note is immediately due and payable. Allowing for all just due credits, Defendant owes $117, 948.61. (See Exhibit 6 Christopher Affidavit, ¶ 5). 3
WHEREFORE, the Funds respectfully request that this Court grant its Motion to Reinstate and Confess Judgment and:
A. Enter judgment jointly and severely in favor of the Funds and against Defendant Boye Janitorial Service, Inc. in the amount of $ $117, 948.61 plus $500.00 which represents Funds' attorney fees and expenses in enforcing Note and moving to reinstate this case;
B. Order Defendant to pay post judgment interest on the judgment amount until fully paid to the Funds; and C. For any other relief deemed just inequitable. 4
(Exhibit Omitted)