Before Swygert, Chief Judge, and Austin and McGARR, District
The opinion of the court was delivered by: Austin, District Judge.
MEMORANDUM OPINION and JUDGMENT ORDER
Plaintiffs' amended complaint contains six counts. Count I,
pleaded as a plaintiffs*fn1 and a defendants*fn2 class
action, asserts the invalidity of Ill.Rev. Stat., ch. 26,
§§ 9 — 503 and 9 — 504.*fn3 Count II alleges a plaintiffs'
class action*fn4 and challenges the constitutionality of
Ill.Rev. Stat., ch. 95 1/2, §§ 3 — 114(b), 3 — 116(b), and 3
— 612.*fn5 Counts III, IV, and V demand compensatory and
punitive damages to Plaintiffs Mojica, Gonzalez, and Barnett
respectively. The final count alleges, on behalf of Mojica
individually, violations by Defendant Credit Union of the
federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. (1968).
Counts III and VI, both relating to Plaintiff Mojica, were
dismissed with prejudice by stipulation of parties.
An examination of the pleadings and other relevant papers
submitted by the four representative plaintiffs reveals that
three of them — Mojica, Gonzalez, and Barnett — allege almost
identical factual situations. In each case, the
debtor-plaintiff granted the creditor-defendant a purchase
money security interest in a used automobile. In each case the
defendant summarily repossessed the car, applied for and
received repossession title, and resold it to a third party not
involved in this litigation. And, in each case, plaintiff
alleges that he was not in default at the time his automobile
Banks, the fourth representative plaintiff, also granted a
defendant a purchase money security interest in his car.
However, no repossession occurred and Banks' sole claim in
this action is his anticipated "fear" that his automobile will
be repossessed in violation of the Illinois Commercial Code.
In fact, when this suit was instituted, Banks was immediately
released by his creditor from all obligations under his
security agreement and note of indebtedness.
Upon consideration of the posture of this case and the
contentions of the various parties, we conclude that the
amended complaint must be dismissed because the plaintiffs
— individually as well as representatively — lack standing to
maintain this action.
The Commercial Code expressly conditions a creditor's right
to repossession upon the existence of an actual, bona fide
default. Ill.Rev.Stat., ch. 26, §§ 1 — 203, 9 — 501(1), 9 —
503, 9 — 504.
Moreover, use of Ill.Rev.Stat., ch. 95 1/2, §§ 3 — 114(b), 3
— 116(b) and 3 — 612 is contingent upon a lawful and proper
transfer of interest in the automobile. Taking their complaint
at face value, the transaction of which each plaintiff
complains involved a violation (or, as to Banks, a feared
violation) of the statutes plaintiff challenges. Indeed, each
plaintiff whose car was repossessed charges that his
creditor-defendant acted with malice and seeks punitive
Thus, in a case where they assert that the repossession and
resale provisions of the Illinois Code were used
improperly and maliciously against them, plaintiffs ask this
Court to determine the validity of these statutes when properly
applied to debtors actually in default. We must decline. Such a
context is hardly appropriate for the resolution of the
constitutional issues plaintiff presents. The courts that have
reached these constitutional arguments have done so only after
careful consideration of their jurisdictional basis. See Adams
v. Egley, 338 F. Supp. 614 (S.D.Cal. 1972), Oller v. Bank of
America, 342 F. Supp. 21 (W.D.Cal. 1972), McCormick v. First
National Bank of Miami, 322 F. Supp. 604 (S.D.Fla. 1971).
We recognize full well that our insistence upon proper
parties and proper procedure avoids what might otherwise be a
meritorious claim. But we also recognize the danger of
deciding such questions on inappropriate records. The
impropriety of hypothetical determinations concerning the
proper application of a statute wrongly applied in the given
case have led the courts to uniformly decline to make
decisions such as plaintiff seeks. Oil Workers Unions v.
Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed. 2d 373 (1960);
Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947
(1968); DeKorwin v. First National Bank, 275 F.2d 755 (7th
In Illinois, there is only one road to repossession and that
road winds its way through §§ 9 — 503 and 9 — 504. Any taking
that does not comply with these sections is unlawful and
subjects the taker to criminal and civil liability. If
plaintiffs' allegations in the amended complaint are accurate,
actions may sound for conversion or for recovery under the
generous damage provisions of Ill.Rev.Stat., ch. 26, § 9 —
507(1). Even their punitive damages may be sustainable. But,
under their present status, they do not possess standing to
assert these constitutional claims. See Dash v. Mitchell,
356 F. Supp. 1292 (D.D.C. 1972).
A further bar to plaintiffs' constitutional claims must be
noted. Counts I and II of the amended complaint seek the
extraordinary remedies of declaratory and injunctive relief.
Each of the named plaintiffs, however, lacks standing to
request such relief. Indeed, even if this court granted