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ILLINOIS EX REL. HARTIGAN v. COMMONWEALTH MORTG. C

February 1, 1990

PEOPLE OF THE STATE OF ILLINOIS ex rel. NEIL F. HARTIGAN, ATTORNEY GENERAL OF ILLINOIS, Plaintiff,
v.
COMMONWEALTH MORTGAGE CORPORATION OF AMERICA, et al., Defendants. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, etc., Intervenor


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE.

 As described in this Court's "Opinion" (723 F. Supp. 1258 (N.D.Ill. 1989)), *fn1" Illinois Attorney General Neil Hartigan initially filed a two-count Complaint in the Circuit Court of Cook County on behalf of the People of the State of Illinois against Commonwealth Mortgage Corporation of America ("Commonwealth") -- a wholly-owned subsidiary of Commonwealth Savings Association ("Association") -- and certain of Commonwealth's officers, alleging violations of:

 
1. the Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121 1/2, paras. 261-272 ("Consumer Fraud Act") in Count I and
 
2. the Uniform Deceptive Trade Practices Act, id. P 312 ("Deceptive Practices Act") in Count II. *fn2"

 On March 8, 1989 Federal Home Loan Bank Board appointed Federal Savings and Loan Insurance Corporation ("FSLIC") as Association's conservator and Federal Deposit Insurance Corporation ("FDIC") to provide management services for FSLIC's conservatorship. FSLIC then intervened to supplant Commonwealth as defendant in this action and removed it to this District Court.

 Because the Complaint seeks restitution of certain sums from FSLIC as intervenor defendant, Opinion at 1261-62 held that plaintiff could not, under the doctrine announced in D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942) and extended in Langley v. FDIC, 484 U.S. 86, 108 S. Ct. 396, 98 L. Ed. 2d 340 (1987), ground any fraudulent-representation recovery upon Commonwealth's asserted oral misrepresentations -- or indeed even written misrepresentations -- that were not contained in official Commonwealth records. Instead plaintiff would have to prove his case using written evidence in Commonwealth's files showing that Commonwealth had placed limitations on the enforceability of its loan promises that amounted to fraud.

 PLAINTIFF'S COUNT I CLAIMS *fn4"

 Plaintiff grounds Count I on Section 262, which reads in 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 or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the "Uniform Deceptive Trade Practices Act", approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.

 Section 2 of the Uniform Deceptive Trade Practices Act (codified as Section 312) declares numerous activities deceptive, including the following activities specifically cited by plaintiff:

 
A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he:
 
* * * *
 
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
 
(3) causes likelihood of confusion or of misunderstanding as to affiliation, connection or association with or certification by another;
 
* * * *
 
(5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;
 
* * * *
 
(9) advertises goods or services with intent not to sell them as advertised;
 
(10) advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
 
* * * *
 
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
 
In order to prevail in an action under this Act, a plaintiff need not prove competition between the parties or actual confusion or misunderstanding.

 Although plaintiff originally recited 11 acts or practices of Commonwealth claimed to violate the Consumer Fraud Act (see Opinion at 1260), once this Court issued its D'Oench-Langley ruling plaintiffs had to narrow their misrepresentation claims to those supported by official Commonwealth records. With the benefit of discovery of documents in ...


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