I Think I Lost My Headache: Album Review, “Rated R”, Queens of the Stone Age

After more than a decade of robotically calling Appetite for Destruction the “best album ever!!” I was jonesing for something fresh.  A friend turned me on to Queens of the Stone Age in the Y2K era and to this day, I’m glad he did.
While QOTSA’s “cocaine pop,” “stoner metal,”, “doom metal” and “desert metal,” (oh – let’s not forget, a “poppier” Soundgarden(!)) labels intrigued me, what really piqued my interest was the band’s rock pedigree.  Front man Josh Homme’s former association with early 90s’ sludge-metal monolith, Kyuss, probably my all-time favorite musical act, set my expectations at an almost impossible level. I expected Rated R to wow me and it did. But not at first and not in the way I anticipated.
Expecting to hear down-tuned Sabbath-like riffs on every track, I was surprised by Rated R’s dearth of saturnine molten guitar chords that were Kyuss’s signature.
It took about six full listens to truly appreciate Rated R musical depth and reach.  The album defies pithy categorization, with nearly each song demonstrating a different genre.
There’s the punkish/garage-band jams “Feel Good Hit of the Summer”- an ode to recreational pharmaceuticals – and “Quick and to the Pointless” – a Ballroom Blitz-type number complete with electro handclaps and a “yeah yeah yeah” cheerleader chorus.
The album also offers pseudo-psychedelic offerings “Auto Pilot”and “Better Living Through Chemistry” – a trippy track with aural fits and starts that’s suffused with fuzz guitar and meandering bass lines.  “Better Living”‘s polished and timeless percussion stands out, too.
There’s the Top-40 pop confection “The Lost Art of Keeping a Secret.”  It’s the one you’d likely karaoke to and, to me, evokes Disraeli Gears-era Cream; what with it’s fat guitar chords and a catchy chorus.
“In the Fade” is an atonal, darkly-tinged track sung hauntingly by the haunting Mark Lanegan (he of Screaming Trees fame). ” Leg of Lamb” features a quirky guitar hook that serves as counter-point to the song’s hypnotic vocals and disturbing lyrics.
“Monsters in the Parasol,” often QOTSA’s live opener, plays as a straight-forward rocker complete with non-sequitur lyrics that are apropos of the song’s acid trip aesthetic. (“Paul’s dead, he’s warped and bubbly; oh well.”)
After choking down the acoustic filler “Lightning Song,” I settled in for what I now know is the album’s crowning moments.
When the UK rock magazine NME called Tension Head one of the greatest rock songs ever “realised,” I dismissed it as across-the-pond hyperbole.  But it’s actually not. ‘Tension’ starts with a biting, down-tuned guitar intro (think accelerated “Into the Void”) then morphs into all-out death-metal cochlear assault overlaid by bassist Nick Oliveri’s guttural howls. The song’s searing fretwork and frenzied bass runs make this Rated R‘s high point.
I Think I Lost My Headache the final track, is the record’s second shining moment.  The track begins with a clean, haunting riff reminiscent of early Soundgarden/late Sabbath and features brilliant use of steel drums. ‘Headache’ also features flawless off-note percussion (think A-game Neil Peart), a crunchy guitar hook and Josh Homme’s signature falsetto.
It’s a pity “Headache”‘s final moments are hijacked by a monotonous horn section playing on a continuous loop.  This questionable recording studio gambit detracts from a song that has all the makings of a (pre-horns) magnum opus.  By my count, Rated R features eleven songs with about as many musical styles. It lives up to the hype that precedes it and showcases the band’s varied talents and influences.
While QOTSA isn’t Kyuss (a sui generis band imho), Rated R stakes out some unique territory in rock ecosystem.  Josh Homme and crew clearly cement their status as top-level rock architects.

Mechanics Lien Trumps Prior Mortgage in ‘Lien Strip’ Bankruptcy Dispute Involving Residential Property

Priority disputes happen a lot in mechanics’ lien litigation.  Typically, a mortgage lender claims that its first-filed mortgage trumps a later-filed mechanics lien.  The “trumps” part is activated if and when the property is sold and there aren’t enough proceeds to pay both the lender and contractor.  If the lender’s mortgage has priority, it gets first dibs on the sale proceeds, leaving the contractor with little or nothing.

Section 16 of the Mechanics’ Lien Act (770 ILCS 60/16) governs the lien priority issue.  This section provides that (i) prior lien claimants have lien priority up to the value of the land at the time of making of the construction contract; and (ii) mechanics’ lien claimants have a paramount lien to the value of all improvements made to the property after the construction contract is signed.

In re Thigpen, 2014 WL 1246116 examines the mortgage lender-versus-contractor priority question through the lens of a bankruptcy adversary case where the debtors attempt to strip away a mechanics’ lien recorded against their homeresidence.

The debtors filed for Chapter 13 bankruptcy protection and later filed an adversary proceeding to extinguish the lien a contractor recorded against the home. 

The debtors claimed that since there was a prior mortgage on the home and the home’s value had dropped to a sum less than the lien amount, the lien should be removed.

In bankruptcy parlance, this is called “lien stripping” and applies where a mechanics lien lacks collateral; usually because of plummeting property values. 

The contractor argued that its lien took priority to the value of the improvements/enhancements and moved for summary judgment.

Held: Contractor’s summary judgment motion granted.

Q: Why?

A: Applying Section 16 of the Act, the Court held that where proceeds of a property sale are insufficient to pay competing lienholders, a mechanics’ lien claimant takes priority over a lender up to the value the contractor added to the property.

The Court wrote: “the Illinois Supreme Court has expressly recognized that Section 16 of the Act confers first priority, not something less, on mechanic’s lien holders, and that they trump pre-existing mortgages to the extent of the value of the improvements.”  (*2).

While the court found that the contractor’s lien trumped the prior mortgage, the Court did not decide the specific monetary amount of the improvements relative to the home’s value. 

The holding is still significant because now the contractor has a secured claim (as opposed to an unsecured one) against the debtors’ estate which must be paid over the life of the Chapter 13 plan. 

If the debtors default, the contractor can liquidate the collateral –  by forcing a sale of the home – and get paid via the proceeds.  An unsecured creditor, by contrast, has no assets securing its claim.  It must hope that the debtors have unattached assets (e.g. paycheck, bank accounts, accounts receivable) with which to pay the debt.  (Good luck with that!)

Take-away: A big win for the contractor.  Instead of having an unsecured claim (with no collateral tied to the claim), its mechanics’ lien claim is secured.  This means the contractor’s lien attaches to the debtors’ house. 

If the debtor defaults under the plan, the contractor can foreclose its lien and force a sale of the home and take priority to the sale proceeds up to the amount of the improvements (here, about $200,000).  

The case’s unanswered question is how does the contractor prove the dollar amount of his improvements?  The contractor will likely have to produce expert witness testimony or documents to establish the dollar value of the contractor’s time, labor and materials  furnished to the debtors’ home.

Illinois Guaranty Law: Increasing Guarantor’ Risk or Changing the Terms = Discharged Guaranty

In Southern Wine and Spirits of Illinois, Inc. v. Steiner, 2014 IL App (1st) 123435, the First District outlined and applied the rules governing the interpretation and enforcement of written guaranty agreements in Illinois.

The plaintiff wine distributor purchased the assets of another distributor that had previously entered into a contract with a liquor store company; a contract personally guaranteed by the individual liquor store owners.

The year after the asset purchase, the plaintiff began supplying wine to the defendants’ liquor store on account.  But neither the plaintiff nor the purchased distributor informed the guarantors of the asset purchase.  Because of this, the guarantors had no idea that the assets of the distributor were sold to the plaintiff.  The defendants also didn’t know that the plaintiff now held the guaranty given by the liquor store owners to purchased distributor.

When the liquor store defaulted on about $20,000 worth of merchandise, the plaintiff sued under the guaranty signed by the liquor store owners.

The defendants moved to dismiss on the basis that the personal guaranty wasn’t assignable to the plaintiff since defendants didn’t know they were guaranteeing the liquor store’s contract obligations to the plaintiff.  The trial court agreed and plaintiff appealed.

Result: Trial court affirmed.

Rules/Reasoning:

In Illinois, a guaranty is simply a contract where a guarantor promises to pay the debts of a “principal” (the main debtor) to a third party creditor.

A guaranty is construed like any other contract and a guarantor is given the benefit of any doubts that may arise from the language of a guaranty.  A guarantor’s liability can’t exceed the scope of what he has agreed to accept and guaranties are strictly construed in favor of the guarantor; especially when the creditor drafted the guaranty.  ¶ 16. 

Guaranty agreements are generally not assignable but a guaranty can be assigned where the essentials of the original contract are not changed and the performance required under the guaranty isn’t materially different from what was originally contemplated. 

Where (1) a guarantor’s risk is increased or (2) performance is materially changed by the assignment of a guaranty or a merger involving the plaintiff-creditor, the guarantor’s obligations can be discharged. ( ¶ 18).

The Court held that because the defendants didn’t know that the guaranty was assigned to the plaintiff and because the amount owed the plaintiff fluctuated from month-to-month (in contrast to the  fixed amount the guarantors owed the original distributor), the defendants’ risk under the guaranty was materially increased by the assignment to plaintiff.

This was deemed a material change in the terms of the agreement that defendants entered into with plaintiff’s predecessor and changed defendants’ risk from known to completely unknown.  (¶¶ 21-22).

The Court also held that the trial court properly struck key parts of the plaintiff’s affidavit filed in response to defendants’ motion to dismiss.

The plaintiff filed the affidavit of its credit manager who testified that she reviewed the payment history involving the purchased distributor and the guarantors’ liquor store business.  The credit manager attached about two years’ worth of invoices and a payment ledger to her affidavit.

But the invoices didn’t  reference the prior wine distributor and only identified the guarantors’ liquor store.  The Court found that because the affidavit attachments failed to link the plaintiff directly to either the guarantor defendants or their liquor business, the plaintiff failed to lay an adequate foundation for the invoices as business records.

Take-aways:

– A guaranty agreement should specify whether or not it’s assignable and enforceable by third parties;

– Where a guaranty is assigned to a third party, the original creditor and assignee should both notify the guarantor and make it clear that the assignee creditor plans to hold the guarantor to the terms of the guaranty;

– Where an assigned or sold guaranty either changes the guarantor’s performance or materially increases his risk, for example by increasing the payment terms or frequency, the guaranty will likely not be enforceable by a third party/assignee.