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07/05/96 LUIS GARCIA v. OVERLAND BOND & INVESTMENT

July 5, 1996

LUIS GARCIA, MARY GARCIA AND LA QUESIA GARNER, PLAINTIFFS-APPELLANTS,
v.
OVERLAND BOND & INVESTMENT COMPANY AND EDWARD BASS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court Cook County. The Honorable John Hourihane, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

The defendant Overland Bond & Investment Company operates a business in Chicago called the Car Credit Center, through which the defendant sells used cars and provides financing for their purchase. The defendant Edward Bass is the general manager of the Car Credit Center. The plaintiffs, purchasers of cars from the Car Credit Center, filed a multi-count complaint against Overland including allegations that the defendant violated the Consumer Fraud And Deceptive practices Act (815 ILCS 505/1 et seq. (West 1992) (Consumer Fraud Act or the Act), by engaging in deceptive advertising in the selling and financing of its cars. The plaintiffs also alleged that Bass should be held individually liable for his actions while working at the Car Credit Center.

The trial judge dismissed count I of the complaint pursuant to the defendants' motion under section 2-615 of the Code of Civil Procedure (ILCS 2-615 (West 1992)) for failure to state a cause of action. The trial judge dismissed all counts against Bass. The plaintiffs contend that the trial judge improperly resolved issues of fact and erred, as a matter of law, in applying section 2 of the Act to their complaint. They also contend that they alleged sufficient facts to support a finding that Bass should be held personally responsible.

Because the counts at issue were dismissed pursuant to section 2-615, we review the allegations of the complaint de novo accepting as true all well-pleaded allegations and drawing all reasonable inferences in a light most favorable to the plaintiff. T & S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083, 634 N.E.2d 306, 199 Ill. Dec. 467 (1994). We will uphold the dismissal only if "it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover." People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11, 585 N.E.2d 51, 165 Ill. Dec. 655 (1991). The relevant allegations in the plaintiffs' complaint are as follows.

On March 19, 1991, the plaintiff La Quesia Garner visited the Car Credit Center in response to various advertisements she had seen in newspapers and on television. On March 25, 1991, the plaintiffs Luis and Mary Garcia visited the Car Credit Center in response to such advertisements. The plaintiffs allege that these advertisements target unsophisticated, low-income buyers such as, inferentially, themselves.

Copies of three print advertisements similar to those Garner and the Garcias saw are attached to the complaint. Each of these announces in large, bold print that customers may purchase vehicles with "NO MONEY DOWN" or "NO DOWN PAYMENT." One of the advertisements also announces "EASY CREDIT," and another offers "INSTANT CREDIT" and "LOW BANK RATE FINANCING." Each of the advertisements offers written guarantees or warranties. They also display either pictures of cars with offering prices or a long list of cars, stating their make and model year followed by a price. At the bottom of one advertisement containing a list of cars and prices along with an offer of "easy credit," in very small print, is the following disclaimer: "The above autos are one of a kind and sold on a 1st come 1st serve basis. This ad must be presented at time of purchase to avail yourself of these prices. Some are as shown. Above terms with o.k. credit ***. Cars subject to prior sale."

The script of a Car Credit Center television advertisement that has been translated from Spanish to English is also attached to the complaint. That advertisement announces twice that customers need pay "no money down" and also that "We guarantee your car in writing." These advertisements contain no disclaimers.

On his visit to the Car Credit Center, Luis Garcia agreed to purchase a used 1985 GMC van and to trade in his 1979 Mercury. Garcia also provided a downpayment of $1500. Sales representatives induced Garcia to sign a bill of sale by offering him "easy credit" and by assuring him that he and his wife could return the van if they did not like it. The bill of sale contained a limited warranty on the motor, transmission, drive and differential. Other than that, the van was sold on an "as is" basis. Garcia also signed a second bill of sale along with a retail installment contract. These were Spanish-language documents. The installment contract provided for financing at an annual rate of 29.64 percent. Garcia also signed a wage assignment.

According to the complaint, the van was defective in numerous respects, including among other things: poor brakes; faulty engine and transmission; front-end misalignment, loose fan belt; malfunctioning horn; faulty locks; malfunctioning heating; inoperative lights; and a worn-out muffler. These defects rendered the van unsafe. On March 26, 1991, Garcia brought the van back to the Car Credit Center for service. The Car Credit Center failed to fix many of the defects, thus breaching its written warranty.

On March 30, 1992, the Car Credit Center issued a notice garnishing Garcia's wages according to the terms of the wage assignment. On April 1, 1992, Garcia unilaterally revoked his wage assignment.

La Quesia Garner visited the Car Credit Center on March 19, 1991 to purchase a 1985 Ford Tempo, several of which she had seen advertised costing between $2,450 and $2,950. Her visit resulted in the purchase of a 1984 Ford Tempo at a cost of $5,995. She made a downpayment of $1,000.00 on the sales price. She entered into a retail installment agreement in which she agreed to pay interest at the annual rate of 33.11 percent. Like Garcia, Garner received a warranty on the transmission, drive shaft and differential; otherwise the sale was "as is." She also executed a wage assignment.

The car Garner purchased was defective because the engine and transmission were worn out. She discovered this because she had trouble shifting gears when she was on the highway, and the engine was smoking. Various mechanics informed her that the engine and transmission were defective. This rendered the car unsafe to drive. The defects were of such magnitude that the Car Credit Center should have known about them. On March 22, 1991, Garner returned the car and asked for a replacement. The Car Credit Center refused to take the car back. Garner demanded that the defects be repaired, which the Car Credit Center apparently initially agreed to do. However, on a subsequent visit to have repairs made, the ...


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