The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
Appeal from Bankruptcy Adversary Proceeding Judgment in Case No.
00 A. 00250
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs, Peter Limberopoulos', objections to
the Bankruptcy Court's Supplemental Proposed Findings of Facts and
Conclusions of Law ("Supplemental Findings"). For the reasons set forth
below, Limberopoulos' objections are overruled, and the Bankruptcy
Court's recommendations are accepted.
On January 3, 2001, the Bankruptcy Court issued Proposed Findings of
Fact and Conclusions of Law. On May 21, 2002, the District Court adopted
those findings and conclusions
except with regard to Count I of Limberopoulos' complaint, in which
he claimed that First Midwest Bank f/k/a Bremen Bank ("Bank") violated
the Illinois Consumer Fraud Act, 815 ILCS 505/1 et seq.
("ICFA"), The District Court directed the Bankruptcy Court to make
findings of fact with respect to the materiality of the alleged
concealment under the ICFA.
Limberopoulos obtained a loan from the Bank in 1988. The evidence at
trial established that all but three of Limberopouolos' tendered payments
to the Bank were properly credited against the loan. These three payments
were made on April 10, 1992; December 7, 1992; and January 11, 1993. The
Bank accepted these three payments without objection or comment and
acknowledged receipt of the payment and the loan number for which the
payments were intended. The Bank, however, failed to apply these payments
to reduce the loan balance. For the April 10, 1992, and the January
11, 1993 payments, the Bank applied them to the loan upon its receipt of
the payments, but the Bank subsequently mistakenly reversed these
applications. The Bank did not inform Liberopoulos of its failure to
apply the payments at the time of payment or thereafter.
On June 20, 2002, the Bankruptcy Court issued its Supplemental
Findings, recommending that judgment be entered in favor of the Bank with
respect to Count I of the complaint.
In non core proceedings (i.e., cases that arc not directly
related to matters arising under Title 11), a bankruptcy judge must
submit proposed findings of fact and conclusions of law to the district
court. 28 U.S.C. § 157(c)(1). The district court then conducts a
de novo review of any portion of the bankruptcy judge's proposed
findings of fact and conclusions of law to which a party has made a
specific written objection. 28 U.S.C. § 187(c)(1); Fed.R. Bank.
Proc. 9033(d). The district court may accept, reject, or modify the
proposed findings of fact or conclusions of law, receive further
evidence, or recommit the matter to the bankruptcy judge with
instructions. Fed.R. Bank. Proc. 9033(d), Accordingly, the Court will
conduct a de novo review of the record to resolve Limberopoulos'
A. Illinois Consumer Fraud Act
To establish a violation of the ICFA, the plaintiff must demonstrate
that: (1) the defendant performed a deceptive act or practice; (2) the
defendant intended that the plaintiff rely on the deception; (3) the
deception occurred in the course of conduct involving a trade or
commerce; and (4) the consumer fraud proximately caused the plaintiff's
injury. Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482,
501, 675 N.E.2d 584, 593 (1997). Although the policy of the ICFA is
to give broad protection to the consumer, Siegel v. Levy Organization
Dev. Co., 153 Ill.2d 534, 541-42, 607 N.E.2d 194, 198 (1992), a
plaintiff must still demonstrate deception by the defendant because the
ICFA prohibits deception, not error. Lagen v. Balcor Co.,
274 Ill. App.3d 11, 23, 653 N.E.2d 968, 977 (Ill.App. 2 Dist. 1995);
Stem v. Norwest Mortgage, Inc., 284 Ill. App.3d 506, 513,
672 N.E.2d 296, 302-03 (Ill.App. 1 Dist. 1996). The Illinois Supreme Court
has held that an omission of a material fact or a material
misrepresentation constitutes a deceptive act. Connick, 174
Ill.2d at 504-05; 675 N.E.2d at 595. An omission is material if the
plaintiff would have acted differently had she been aware of it, or if it
concerned the type of information upon which she would be expected to
rely in making her decision to act, Id.
The ICFA does not mandate that the defendant have deliberately intended
to deceive the plaintiff, so long as the misrepresentation or omission
was intended to induce the plaintiff's reliance. Cripe v.
Letter, 184 Ill.2d 185, 191, 703 N.E.2d 100, 103 (1998);
Mackinac v. Arcadia
Nat'l Life Ins. Co., 271 Ill. App.3d 138, 141-42, 648 N.E.2d 237,
239-40 (1995). When considering whether the element of reliance is
met, good or bad faith is not important, and an innocent
misrepresentation or omission may be actionable. Siegel, 153
Ill.2d at 542, 607 N.E.2d at 198, A party is considered to intend the
necessary consequences of his own acts or conduct. Dwyer v. ...