Oldendorf v. General Motors Corp.

• Decision Date: 07 June 2001
• Docket Number: No. 2-00-0343.,2-00-0343.
• Citation: 751 N.E.2d 214,256 Ill.Dec. 161,322 Ill. App.3d 825
• Parties: Steven L. OLDENDORF and Dana M. Oldendorf, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION; Dan Wolf Pontiac-GMC Trucks, Inc.; Harris Bank Barrington, N.A.; and Judicial Recovery Systems, Inc., a/k/a REI Towing, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

751 N.E.2d 214

322 Ill. App.3d 825

256 Ill.Dec. 161

Steven L. OLDENDORF and Dana M. Oldendorf, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION; Dan Wolf Pontiac-GMC Trucks, Inc.; Harris Bank Barrington, N.A.; and Judicial Recovery Systems, Inc., a/k/a REI Towing, Defendants-Appellees.

No. 2-00-0343.

Appellate Court of Illinois, Second District.

June 7, 2001.

Norman H. Lehrer, Maureen Flaherty, Lehrer, Flaherty & Canavan, Wheaton, for Dana M. Oldendorf, Steven L. Oldendorf.

Edward J. Lesniak, Jay S. Dobrutsky, Burke, Warren, MacKay & Serritella, P.C., Chicago, for Harris Bank Barrington, N.A.

Joseph M. Laraia, Michael T. Navigato, Laraia & Hubbard, P.C., Wheaton, for Dan Wolfe Pontiac-GMC Trucks.

Thomas A. Carton, James R. Branit, Bullaro & Carton, Chtd., Chicago, for Judicial Recovery.

Robert Johnson, Brothers & Thompson, P.C., Chicago, for General Motors Corp.

Justice O'MALLEY delivered the opinion of the court:

Plaintiffs, Steven and Dana Oldendorf, appeal the circuit court's order granting the motion of defendant Dan Wolf Pontiac-GMC Trucks, Inc. (Wolf), to dismiss counts IV and V of plaintiffs' amended complaint. Plaintiffs also appeal the court's order granting motions for summary judgment in favor of defendants Harris Bank Barrington, N.A. (Harris Bank), and Judicial Recovery Systems, Inc. (JRS), as to counts VII and VIII of plaintiffs' amended complaint. (Plaintiffs pleaded two count VIIs in their original complaint, which were repeated verbatim in their amended complaint; for purposes of this opinion, we refer to the second count VII as count VIII.) We affirm the trial court's judgment granting summary judgment against plaintiffs as to counts VII and VIII of their amended complaint and reverse the court's judgment dismissing counts IV and V of the amended complaint. The portion of our opinion regarding counts VII and VIII will not be published.

BACKGROUND

Plaintiffs purchased a used 1995 Pontiac Bonneville from Wolf on December 27, 1997. Plaintiffs financed the purchase and executed a retail installment agreement, which contained the following provisions:

"SECURITY INTERESTS: Seller is granted a purchase-money security interest in the motor vehicle described above and all accessories under the Illinois Uniform Commercial Code until the Total of Payments and all future indebtedness for taxes, liens, repairs and insurance premiums advanced by holder hereunder are paid in full.

* * *

ACCELERATION: Buyer agrees that (1) if Buyer shall default in the payment of any installment of the Total of Payments or any other indebtedness due hereon * * * the holder may declare all unpaid installments of the Total of Payments and all other indebtedness secured hereby immediately due and payable, without notice or demand.

* * *

5. Upon the occurrence of any event of default, the holder of this contract shall have the rights and remedies provided by Article 9 of the Illinois Uniform Commercial Code including, but not by way of limitation, the rights of the holder (a) to take immediate possession of the motor vehicle, with or without judicial process."

As required by section 433.2 of the Code of Federal Regulations (FTC Rule) (16 C.F.R. § 433.2 (1975)), the agreement also contained the following language:

"NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED

AMOUNTS PAID BY THE DEBTOR HEREUNDER."

The financing agreement subsequently was assigned to Harris Bank, which is identified as "First Lienholder" on the certificate of title. No other security interest is identified on the certificate of title. Plaintiffs concede on this appeal that Harris Bank has a perfected security interest in the car under Article 9 of the Uniform Commercial Code (UCC) (810 ILCS 5/9-101 et seq. (West 1998)).

At the time of purchase, plaintiffs paid $620 for "General Motors Protection Plan Major Guard Coverage" (GMPP contract), which was issued by defendant General Motors Corporation (GM). Plaintiffs also executed a form entitled "Contract Registration," which was completed at the time the car was purchased. Our analysis of the content of the registration form will be provided below.

In November 1998, plaintiffs sent notice to Wolf, GM, and Harris Bank of their intent to revoke their acceptance of the car. Plaintiffs alleged that the car was defective, and unsafe and unreliable as a result, because the car excessively leaked oil in spite of repeated attempts to repair the problem. They requested the cancellation of the "contracts," the return of all payments made, and compensation for their damages. The notice was silent as to the nature and the dollar amount of the damages claimed. Plaintiffs also stated that they would make no further payments under the financing agreement and maintained that repossession was prohibited because they were also "asserting their security interest in the vehicle, pursuant to 810 ILCS 5/2-711, which [gave] them a superior right to possession over any lien holder."

On or about March 19, 1999, JRS, under contract with Harris Bank, repossessed the car. Plaintiffs filed their initial complaint on March 22, 1999. On December 29, 1999, plaintiffs filed an amended complaint alleging, in pertinent part, violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. West 1998), common-law fraud, and conversion. Counts IV and V alleged violation of the Consumer Fraud Act and common-law fraud, respectively, against GM and Wolf, its authorized dealer. Counts VII and VIII alleged conversion and violation of the Consumer Fraud Act, respectively, against Harris Bank and JRS. On Wolf's motion, the trial court dismissed counts IV and V pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1998)). On motions brought by Harris Bank and by JRS, the court granted summary judgment against plaintiffs on counts VII and VIII, pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 1998)). This appeal followed.

ANALYSIS

A section 2-615 motion attacks the legal sufficiency of a complaint by asserting that it fails to state a cause of action upon which relief can be granted. Carroll v. Faust, 311 Ill.App.3d 679, 684, 244 Ill.Dec. 291, 725 N.E.2d 764 (2000). In ruling on such a motion, only those facts apparent from the face of the pleadings, matters of which the court may take judicial notice, and judicial admissions in the record may be considered. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 115, 214 Ill. Dec. 156, 660 N.E.2d 863 (1995). All well-pleaded facts alleged in the complaint and all reasonable inferences from them are to be taken as true (Mt. Zion, 169 Ill.2d at 115,214 Ill.Dec. 156,660 N.E.2d 863), and the allegations are to be viewed in the light most favorable to the plaintiff (Carroll, 311 Ill.App.3d at 684,244 Ill.Dec. 291, 725 N.E.2d 764). Our review of the granting of such a motion is de novo. Carroll, 311 Ill.App.3d at 684,

244 Ill.Dec. 291,

725 N.E.2d 764.

Count IV alleges violation of the Consumer Fraud Act. In order to set forth a cause of action under the Act, a complaint must set forth specific facts that establish each of the following elements: (1) a deceptive act of misrepresentation of a material fact by the defendant; (2) the defendant's intention that the plaintiff rely on the deception of misrepresentation; and (3) that the deception or misrepresentation occurred in the course of business. Gragg v. Calandra, 297 Ill.App.3d 639, 647, 231 Ill.Dec. 711, 696 N.E.2d 1282 (1998).

Plaintiffs alleged that, "at all times relevant," defendants were engaged in trade or commerce and that the following "representations and/or omissions" were made to plaintiffs:

"(a) Defendant represented in writing to Plaintiffs that the duration of the GM Protection Plan (`GMPP') purchased by Plaintiffs for $620.00 was 5 years/60,000 miles from the date of purchase. (Exhibit `B').

10. The representations and/or omissions set forth above were made with the intent that Plaintiffs rely on them.

11. The representations and/or omissions set forth above were false and untrue, or Defendant Dealer committed unfair and/or deceptive acts, in that Defendant; [sic]

(a) failed to disclose that coverage under the GMPP had begun to run on 1/12/95, 2 years before Plaintiffs' purchase;

(b) failed to disclose that coverage under the GMPP would expire in two years, rather than in 5 years, from the date of purchase."

The "Contract Registration" form, which was attached to the amended complaint as Exhibit "B," identified the car purchased by plaintiffs as a GM certified used vehicle. The form indicated that the car's odometer mileage was 18,734, the purchase date was December 27, 1997, and the car was originally placed "in service" on January 12, 1995. Limited warranty information was provided next. The form explained that, on vehicles covered under the 48-month/ 50,000 mile and 60-month/62,000 mile limited warranties, the "time and mileage limits begin on the date the vehicle was first delivered as a new vehicle or put into service and at zero (0) miles." On vehicles covered under the 12-month/12,000 mile warranty, the "time and mileage limits begin on the vehicle purchase date and at the mileage shown above."

Beneath the limited warranty information was a section explaining optional coverage. The form explained that the following optional coverage was available to plaintiffs at the price of $620.00:

"GM Certified Used Vehicles with remaining new vehicle limited warranty are eligible for the following plans:

[X] 60 Months/60,000 Miles

[] 72 Months/75,000 Miles

[] 72 Months/100,000 Miles."

(Emphasis in original.)

The reverse side of the form contained the following language:

"Purchase

...