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GRAVES v. TRU-LINK FENCE CO.
November 7, 1995
QUINZOLA GRAVES, on behalf of herself and all others similarly situated, Plaintiff,
TRU-LINK FENCE COMPANY, an Illinois corporation; ALLEN R. PERL, ATTORNEY AT LAW, P.C., an Illinois corporation, and ALLEN R. PERL, Defendant.
The opinion of the court was delivered by: GETTLEMAN
Plaintiff Quinzola Graves filed a five count amended complaint on behalf of herself as an individual and as the representative of a putative class. Plaintiff alleges that in connection with a contract to erect a wrought iron fence, defendant Tru-Link Fence Co. ("Tru-Link") engaged in a pattern of conduct in violation of the Truth In Lending Act ("TILA"), 15 U.S.C. § 1601 et. seq., Federal Reserve Board Regulation Z ("Regulation Z"), 12 C.F.R. part 226 (Counts I
), and the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS 505/2 (Count V). Plaintiff also alleges that defendants Allen R. Perl, Attorney at Law, P.C., and Allen R. Perl ("together, the Perl defendants") engaged in a pattern of conduct involving the same contract in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1667 et seq. (Counts III and IV).
Plaintiff asserts that this court has federal question jurisdiction over Counts I through IV pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Count V pursuant to 28 U.S.C. § 1337. Tru-Link has filed a motion to dismiss Counts I, II, and V, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons set forth below, Tru-Link's motion is denied.
On July 21, 1994, plaintiff met with Chuck Lamensop ("Lamensop"), a Tru-Link representative, to discuss a contract between plaintiff and Tru-Link to build a fence surrounding plaintiff's home. Lamensop showed plaintiff pictures of a wrought iron fence with scrolls and spear tops. Based on Lamensop's representations plaintiff signed a document entitled "Fencing Estimate and Proposal" (the "Fencing Proposal"). The Fencing Proposal states that the price for material and labor for the fence is $ 5000, with a downpayment of $ 1000 and the remaining $ 4000 to be paid over a 36 month period at $ 142.61 per month.
The Fencing Proposal has a diagram showing the fence measurements. Directly below the diagram it states:
THE COMPANY IS OBLIGATED ONLY BY WHAT IS WRITTEN IN THIS CONTRACT NO OTHER CONTRACTS, VERBAL AGREEMENTS OR SPECIFICATIONS ARE VALID UNLESS STATED ABOVE.
IN THE EVENT THIS PROPOSAL IS NOT APPROVED BY TRU-LINK FENCE CO ENGINEERING OR CREDIT DEPARTMENT ANY PAYMENT MADE SHALL BE REFUNDED TO THE CUSTOMER AND THIS PROPOSAL SHALL BECOME NULL AND VOID.
I, THE UNDERSIGNED HEREBY AGREE THAT IN THE EVENT OF DEFAULT IN THE PAYMENT OF ANY AMOUNT DUE, AND IF THIS ACCOUNT IS PLACED IN THE HANDS OF AN AGENCY OR ATTORNEY FOR COLLECTION OR LEGAL ACTION, TO PAY AN ADDITIONAL CHARGE EQUAL TO THE COST OF COLLECTIONS INCLUDING AGENCY AND ATTORNEY FEES AND COURT COSTS INCURRED AND PERMITTED BY LAWS GOVERNING THESE TRANSACTIONS...
AGREEMENT AND ACCEPTANCE TO PAY
TRU-LINK FENCE CO AGREES TO FURNISH MATERIAL FOR AND INSTALL A TRU-LINK FENCE AS DESCRIBED ABOVE AND THE BUYER AUTHORIZES WORK TO COMMENCE AND AGREES TO PAY THE PRICE DESCRIBED ABOVE AS SPECIFIED AT THE TIME OF INSTALLATION.
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