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06/29/89 Edward Joseph Zinser, v. Uptown Federal Savings and

June 29, 1989

EDWARD JOSEPH ZINSER, PLAINTIFF-APPELLANT

v.

UPTOWN FEDERAL SAVINGS AND LOAN, F.A., AS SUCCESSOR, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

542 N.E.2d 87, 185 Ill. App. 3d 979, 134 Ill. Dec. 87 1989.IL.1027

Appeal from the Circuit Court of Cook County; the Hon. Morris Topol, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This appeal involves the dismissal of count IV of a complaint for failure to state a cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.).

The complaint alleges that the plaintiff, Edward Zinser, purchased a truck from Glenside Nissan. Zinser entered into a written installment agreement with Nissan which was subsequently assigned to the defendant, Uptown Federal Savings (the Bank). Under the terms of the agreement, Zinser was required to make 60 installment payments on the third day of each month, commencing on December 3, 1986. The agreement also included a non-waiver clause which provided that "[waiver] of any default in the payment of any installment of the total of payments when due shall not operate as a waiver of any subsequent default. No extension of the time of payment or any other modification of the terms of this contract shall be binding on holder unless written consent thereof is given."

Sometime prior to December 3, 1986, the due date of the first installment payment, Zinser lost his job. Zinser notified the Bank of his position and requested a moratorium on future payments until he got another job. The Bank orally agreed. Zinser become employed in mid-February at which time he wrote a check which covered the payments due December 3, 1986, January 3, 1987, and February 3, 1987. Zinser also made the installment payment due on March 3, 1987.

During the months of April 1987 through September 1987, Zinser paid some of the installment payments on time and paid some late. As of September 1987, Zinser believed he was current on all but one of his installment payments. The Bank claimed that Zinser was behind in three or four payments. Zinser received no communications from the Bank about late or delinquent payments.

On September 17, 1987, the Bank repossessed the truck, which was parked in a lot at Zinser's place of employment. Zinser's personal belongings were taken along with the truck. The Bank refused to return the truck, and Zinser was told that he would have to pick up his personal belongings if he wanted them back.

Based on these facts, Zinser filed a four-count complaint. Count IV, which was directed against the Bank, alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.) The Bank moved to dismiss the count pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). The trial court granted the Bank's motion.

On appeal, Zinser argues that he has stated a cause of action under the Consumer Fraud Act because the facts alleged constitute an "unfair act or practice" under section 2 of the Act. Section 2 provides in pertinent part:

"Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation . . . in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 121 1/2, par. 262.

Zinser maintains that despite the non-waiver clause in the installment contract, the repossession and retention of his truck without notice or consent constitutes an "unfair act or practice" where the Bank has condoned past defaults. Zinser also argues that requiring him to pick up ...


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