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06/30/94 LOURDES ARCA v. COLONIAL BANK & TRUST

June 30, 1994

LOURDES ARCA, PLAINTIFF-APPELLANT,
v.
COLONIAL BANK & TRUST COMPANY OF CHICAGO AND EVANSTON NISSAN, INC., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS J. O'BRIEN, PRESIDING.

Rehearing Denied August 5, 1994.

Johnson, Hoffman, Cahill

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiff, Lourdes Arca, filed a three-count complaint in the circuit court of Cook County against defendants, Colonial Bank & Trust Company of Chicago (hereinafter Colonial), and Evanston Nissan, Inc. (hereinafter Nissan). Each count alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261 et seq.). The first two counts also alleged violations of the Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1991, 121 1/2, par. 561 et seq.). Those counts pertained to both Nissan and Colonial and the third only concerned Colonial. The trial court dismissed the entire complaint based on Arca's failure to plead sufficient facts entitling her to recovery.

On appeal, Arca contends the trial court erroneously ruled that she failed to state a cause of action.

We affirm in part and reverse in part and remand.

In 1990, Ricardo C. Velando sought to purchase a vehicle from Nissan and completed the credit application required by the dealership. As his credit rating was poor, Nissan asked Velando to provide a cosigner for the motor vehicle retail installment sales contract he was to sign. Arca, a friend of Velando, agreed to act as his cosigner and completed a credit application. Both Nissan and Colonial, which purchases motor vehicle retail sales installment contracts from dealers, reviewed her credit and subsequently approved Velando's application. Velando purchased the vehicle.

Velando made payments pursuant to the contract until February 1991. In May of that year, he ceased making payments and Arca received a letter from Colonial demanding payment of the past due amount. Arca paid the requested amount and inquired as to whether the vehicle could be repossessed. A managing agent at Colonial told her that the bank would not repossess the car. The agent explained that, under the contract, she is principally liable as a buyer and refused to return her money. Arca later retained counsel who demanded that Colonial return her money.

Arca filed a three-count complaint against Colonial and Nissan as an individual and as a representative of a class alleging violations of the Motor Vehicle Retail Installment Sales Act (hereinafter the Act) and the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261 et seq.). Count I, solely in issue here, alleged that Colonial and Evanston forced individuals whom they knew were not buyers or cobuyers to sign motor vehicle retail installment contracts as such in violation of section 18 of the Act, thereby violating section 2 of the Consumer Fraud and Deceptive Business Practices Act. Count II claimed that Colonial and Nissan improperly require cosigners to sign as "jointly responsible" cobuyers in violation of the Act. Finally, count III alleged that Colonial used deceit and misrepresentation in its collection practices. The trial court found that Arca failed to plead sufficient facts entitling her to relief and dismissed her complaint with prejudice. Arca appeals.

Initially, we consider whether Arca's class allegations were proper. A plaintiff who seeks to maintain a class action must satisfy four statutory components:

"(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of fact or law common to the class, which common questions predominate over any questions ...


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