Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/08/96 GAINER BANK v. DARLENE JENKINS

October 8, 1996

GAINER BANK, N.A., PLAINTIFF-APPELLEE,
v.
DARLENE JENKINS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 93 CH 1837. The Honorable John Hourihane, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

In this interlocutory appeal we are asked to determine whether, under the circumstances present here, an Indiana holder of a retail installment sales contract was required to comply with the Illinois Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 561 et seq. (now 815 ILCS 375/1 et seq. (West 1994))) (the Act) before repossessing a car in Illinois. For the reasons that follow, we conclude that the provisions of the Act do not apply in this case.

In July 1987, defendant Darlene Jenkins entered into a retail installment sales contract for the purchase of a used 1984 Buick with Schepel Buick, Inc., an automobile dealer in Merrillville, Indiana. The cost of the Buick was $8,500, plus 14.90% annual interest, to be paid in 48 payments. Schepel Buick immediately assigned the contract to plaintiff Gainer Bank, N.A., an Indiana bank.

In November 1987, plaintiff purchased "force placed" insurance for the Buick, believing that defendant failed to furnish an insurance policy as required by the contract. By April 1991, the premiums for the insurance, which were added to defendant's loan balance, totalled almost $4,200. In January 1991, when defendant failed to make payments, *fn1 plaintiff obtained a default judgment for the Buick's possession in Indiana and had it repossessed in Illinois and sold at a public auction.

In June 1991, plaintiff filed the instant action seeking payment of the deficiency balance of the contract, including the amount of the insurance. Later, after receiving proof that defendant was insured during the time she had possession of the Buick, plaintiff amended its complaint to credit her for the costs of the insurance.

In May 1993, defendant filed an answer and affirmative defenses and counterclaimed, individually and on behalf of a class of persons allegedly injured by plaintiff. In count V of her counterclaim, she contended that plaintiff's repossession and sale of the Buick violated the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ICLS 505/1 et seq. (West 1994)) by failing to comply with the Act. Count VI, in which defendant alleged conversion, was based in part on purported violations of the Act. Her fifth, part of her sixth, and her eighth affirmative defenses also raised the Act as a bar to plaintiff's collection of a deficiency judgment.

In August 1993, plaintiff moved to dismiss counts I through V of defendant's counterclaim and to strike her first through fifth, part of her sixth, and her eighth and ninth affirmative defenses. Finding that the Act was inapplicable to the instant case, the circuit court dismissed and struck those portions of defendant's filings that were predicated upon it: count V and part of count VI of the counterclaim and the fifth, part of the sixth, and the eighth affirmative defenses.

Pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), the circuit court certified for appeal the question of whether section 20 of the Act applies to this case. We granted defendant's motion for leave to appeal and this interlocutory appeal followed.

The sole question presented in this appeal is whether section 20 of the Act applies to a motor vehicle retail installment sales contract where the contract was entered into and payments were made in Indiana, but the vehicle at issue was titled, insured, kept, and repossessed in Illinois.

The Act was enacted to protect the unsophisticated motor vehicle consumer from the oppressive and unscrupulous practices of the installment seller. Chrysler Credit Corp. v. Ross, 28 Ill. App. 3d 165, 168-71, 328 N.E.2d 65 (1975).

Section 20 of the Act provides that a holder of a motor vehicle retail installment sales contract must comply with certain requirements before repossessing a car or selling it. Ill. Rev. Stat. 1991, ch. 121 1/2, par. 580 (now 815 ILCS 375/20 (West 1994)). Where the holder fails to comply with the requirements of section 20, the buyer of the car is not liable for any finance, delinquency, collection, or refinancing charges connected with the contract. Ill. Rev. Stat. 1991, ch. 121 1/2, par. 584 (now 815 ILCS 375/24 (West 1994)). Here, defendant contends that because plaintiff failed to comply with section 20, it may not collect a deficiency judgment.

Plaintiff first contends that the Act is inapplicable because it does not create a private right of action. Arca v. Colonial Bank & Trust Co., 265 Ill. App. 3d 498, 502, 637 N.E.2d 687, 202 Ill. Dec. 148, (1994). Because defendant is not suing under the Act, but invokes it merely to prove violations of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.