agreement, the basic contents of that agreement, and the pertinent parties. See, Khalid Bin Talal Bin Abdul Azaiz Al Seoud v. E.F. Hutton & Company, Inc., 720 F. Supp. 671, 685 (N.D.Ill. Aug. 24, 1989). Plaintiff's complaint cites to each separate agreement that was relevant to the breach of contract claim, explains the basic allegations of defendant's insurance containing coverage that was above and beyond that which was required in the agreement, and names the pertinent parties. The pleading therefore satisfies Rule 8, and the Court thus denies defendant's motion for a more definite statement of Count II.
3. Motion to Dismiss Count III under Rule 12(b)(6)
Count III alleges that defendant's repossession notice
violated "§ 9-504 of the Uniform Commercial Code."
Defendant initially requested this Court to dismiss Count III under Federal Rule 12(b)(6), arguing its repossession and private sale notice fully complied with section 9-504 of the Uniform Commercial Code as codified in Illinois under 810 ILCS 5/9-504.
Defendant argues that the necessary minimal notice for repossession is satisfied by sending one notice stating the date after which the sale of repossessed property may occur. Matter of Excello Press, Inc., 890 F.2d 896, 903 (7th Cir., Nov. 20, 1989). Plaintiff's response to defendant's motion concedes this point, but continues to add an allegation that the repossession notice materially misrepresents the debtor's rights to redemption under section 9-506,11 and thus does not constitute "reasonable notice" under section 9-504. Specifically, plaintiff claims that the notice falsely states that plaintiff may redeem only until the date of sale set forth in the notice. In its reply, not surprisingly, defendant changed its argument to dismiss Count III for failing to apprise defendant of the proper statute from which the claim arose.
A complaint should not be dismissed pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hartford Fire Insurance Co., et al. v. California et al., 113 S. Ct. 2891, 2917, 125 L. Ed. 2d 612 (1993); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The complaint need not specify the correct statute in order to defeat a Rule 12(b)(6) motion to dismiss. Letisha A. by Murphy v. Morgan, 855 F. Supp. 943, 947 (N.D.Ill., Jun. 16, 1994); citing Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (1992). "It is a well-settled principle of law that 'a compliant should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.'" Bowers v. Hardwick, 478 U.S. 186, 201, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (dissenting opinion Blackmun, 1986)
Section 9-504 calls for the repossessing party of consumer goods to give the debtor "reasonable notice" of the time after which any intended disposition is to be made. Requiring reasonable notice affords the debtor an opportunity to exercise his right to redemption under section 9-506. Boender v. Chicago North Clubhouse Ass'n, Inc., 240 Ill. App. 3d 622, 631, 608 N.E.2d 207, 213, 181 Ill. Dec. 134 (1st Dist. 1992),
citing Korogluyan v. Chicago Title and Trust Company, 213 Ill. App. 3d 622, 629, 572 N.E.2d 1154, 1160, 157 Ill. Dec. 690 (1st Dist. 1991). Any part of the notification that undermines this purpose necessarily prevents a finding of "reasonable notification." Boender v. Chicago North Clubhouse Ass'n Inc, 240 Ill. App. 3d at 631. Notice that misstates the debtor's lawful right to redemption is not "reasonable notification" as required by section 9-504(3). First National Bank of Maryland v. DiDomenico, 302 Md. 290, 295, 487 A.2d 646, 648-9 (Md, Feb. 6, 1985).
If a creditor does not proceed in accordance with the provisions of sections 9-504 or 9-506, the debtor is accorded statutory damages under section 9-507.
In DiDomenico, DiDomenico borrowed funds from First National Bank to purchase a mobile home. After the loan had been in default a period of time, the bank repossessed the mobile home and mailed DiDomenico a redemption notice that stated he had the right to redeem his goods within fifteen days from the date of delivery of the notice, February 19, 1981. Because the property was not sold until May 2, 1981, under section 9-506 the borrower had the right to redeem his property until that date. The Court held that a notice that contains this type of misstatement is not "reasonable notification" under section 9-504(3). 487 A.2d at 648-649.
Neither vagueness nor lack of details constitute sufficient grounds alone to dismiss a complaint under Rule 12(b)(6). Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. April 17, 1985). In view of the liberal notice pleading requirements of Rule 8(a) that govern civil actions, plaintiff's complaint includes enough facts and allegations to support a claim under sections 9-504 or 9-506. The complaint alleges the security agreement and loan obtained from defendant (P 11, Ex. A), repossession of the vehicle by defendant and the subsequent notice (PP 22-23, Ex. D), the inaccuracy of the notice in describing plaintiff's redemption rights (125), violation of the notice requirement under 9-504 (P 51), and the damages sought under section 9-507 (P 53).
Construing the facts and allegations in the complaint in a light most favorable to the non-movant, the Court denies defendant's motion to dismiss Count III of the complaint. This ruling should not be construed as a ruling on the reasonableness of the notice sent by the defendant.
Although the Court denies defendant's motions for a more definite statement on Counts I and II and to dismiss Count III, the Court notes that the complaint fails to meet the standards this Court would expect of counsel as experienced in consumer finance litigation as plaintiff's counsel in this case. It would have been a simple matter to specify the sections of TILA and Regulation Z that plaintiff claims defendant violated, and to state the nature of the "additional and unauthorized" insurance defendant allegedly purchased. More precise pleading would avoid unnecessary discovery and motion practice.
Defendant is granted twenty-one days from the date of this Order to answer the complaint. The order requiring a written status report and setting a status conference for November 14, 1994 remains in effect.
ENTER: November 2, 1994
Robert W. Gettleman
United States District Judge