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.

IN RE LIMBEROPOULOS

March 15, 2004.

In re: GUS LIMBEROPOULOS, Debtor; PETER LIMBEROPOULOS, Plaintiff; V. FIRST MIDWEST BANK, f/k/a Bremen Bank & Trust Co., First Midwest Bank, f/k/a Bremen Bank & Trust Co., not individually but as Trustee under Trust Agreement Number 87-3184, Harry Limberopoulos, Gus Limberopoulos, Louis Siamatas, and Ted Limberopoulos, Defendants


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.

 I. BACKGROUND

  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 Page 2 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.

 II. STANDARD OF REVIEW

  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 Page 3 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' objections.

 III. DISCUSSION

  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 Page 4 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. ...


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.