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06/05/97 CATHERINE PATRICK v. WIX AUTO COMPANY

June 5, 1997

CATHERINE PATRICK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
WIX AUTO COMPANY, INC., AND ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 95--L--50848. Honorable Joseph N. Casciato, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Wolfson, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Plaintiff, Catherine Patrick, filed a class action against defendant, Wix Auto Company, alleging that defendant failed to comply with the satisfaction by repossession notice requirements of section 9--505(2) of the Illinois Commercial Code (810 ILCS 5/9--505(2)(West 1994)) after it repossessed her automobile. Defendant filed a section 2--615 motion to dismiss the complaint (735 ILCS 5/2--615 (West 1994), which was granted. The trial court found that the notice sent by defendant was sufficient as a matter of law. For the following reasons, we reverse and remand.

Plaintiff purchased a used 1987 Cadillac automobile from defendant on March 22, 1995, for $6,995 plus finance charges. Pursuant to the retail installment contract, plaintiff was required to maintain insurance on the automobile. Defendant repossessed the automobile on April 26, 1995, and sent a letter entitled "Notice of Repossession" to plaintiff on May 2, 1995.

On September 29, 1995, plaintiff filed a class action against defendant for failure to comply with either section 9--504 or 9--505(2) of the Illinois Commercial Code (810 ILCS 5/9--504, 9--505(2)(West 1994)). The complaint sought statutory damages pursuant to section 9--507 of the Code. 810 ILCS 5/9--507(West 1994).

On December 5, 1995, defendant filed a section 2--615 motion to dismiss for failure to state a cause of action. The motion claimed that the notice sent to plaintiff on May 2, 1995, satisfied section 9--505(2)'s requirements. The trial court granted defendant's motion.

On appeal, plaintiff asserts that the complaint adequately pleaded a cause of action because (1) it established that defendant was a secured creditor who, after repossessing the secured collateral, was required by section 505(2) to send a written notice that it proposed to retain the collateral in satisfaction of the obligation; (2) it alleged that the notice did not comply with the requirements of section 505(2); and (3) it set out the damages for defendant's violation, which is a statutory penalty under section 507.

The main issue on appeal is whether plaintiff stated a cause of action pursuant to section 505(2), which reads, in pertinent part, as follows:

"In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if he has not signed after default a statement renouncing or modifying his rights under this subsection. In the case of consumer goods no other notice need be given.***If the secured party receives objection in writing from a person entitled to receive notification within twenty-one days after the notice was sent, the secured party must dispose of the collateral under Section 9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor's obligation." 810 ILCS 5/9--505(2)(West 1994).

After repossessing a debtor's collateral, the secured creditor can either dispose of the collateral and seek a deficiency judgment (810 ILCS 5/9--504(West 1994)) or accept it in discharge of the obligation (810 ILCS 5/9--505(2)(West 1994)). In either case, the secured creditor must send notice of its action to the debtor. 810 ILCS 5/9--504, 505(2)(West 1994).

A motion to dismiss attacks only the legal sufficiency of a complaint. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475, 575 N.E.2d 548, 159 Ill. Dec. 50 (1991). In making a determination to dismiss a complaint, the court must interpret the allegations of the complaint in the light most favorable to the plaintiff ( Kolegas v. Heftel Broadcasting Corporation, 154 Ill. 2d 1, 9, 607 N.E.2d 201, 180 Ill. Dec. 307 (1992)) and all well-pleaded facts and reasonable inferences are accepted as true ( Mt. Zion State Bank and Trust v. Consolidated Communications, 169 Ill. 2d 110, 115, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995); Fellhauer v. City of Geneva, 142 Ill. 2d 495, 499, 568 N.E.2d 870, 154 Ill. Dec. 649 (1991)).

When a claim or defense is founded upon a written instrument, that instrument must be attached to the pleading as an exhibit and is part of the pleading for purposes of a motion to dismiss. F.H. Prince & Co., v. Towers Fin. Corp., 275 Ill. App. 3d 792, 797, 656 N.E.2d 142, 211 Ill. Dec. 950 (1995). Therefore, we must analyze ...


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