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August 16, 1973


Before Swygert, Chief Judge, and Austin and McGARR, District Judges.

The opinion of the court was delivered by: Austin, District Judge.


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 was repossessed.

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.


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 Cir. 1960).

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 plaintiffs ...

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