The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Shelva C. Williams, filed suit against Defendants,
AmeriCredit Financial Services and Precision Recovery, Inc., alleging
violations of Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. § 1692, et seq., the Illinois Consumer Fraud and Deceptive
Business Practices Act ("ICFA"), 810ILCS 5/9-609, and for trespass. Williams also seeks redress
against AmeriCredit for violating the Illinois Commercial Code ("ICC"),
815 ILCS 5/9-101, et seq., and ICFA. Subsequently, AmeriCredit filed a
Counterclaim against Williams, alleging AmeriCredit had a superior
right, title and interest in the vehicle and that Williams breached her
contract with AmeriCredit. Presently pending before the Court is
AmeriCredit's Motion to Dismiss Counts IV and V of Plaintiffs Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000) (Marshall-Mosby). A
plaintiff is not required to plead the facts or the elements of a claim,
with the exceptions found in Federal Rule of Civil Procedure 9. See
Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson,
288 F.3d 1005, 1007 (7th Cir. 2002). A filing under Federal Rules of
Civil Procedure need not contain all the facts that will be necessary to
prevail. It should be "short and plain," and it suffices if it notifies
the defendant of the principal events. Hoskins v. Poelstra, 320 F.3d 761,
764 (7th Cir. 2003). Dismissal is warranted only if "it appears beyond a
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957). The simplified notice pleading relies upon liberal
discovery and summary judgment motions to define disputed issues and
facts and to dispose of unmeritorious claims. Swierldewicz, 534 U.S. at
A reading of the Plaintiff's Complaint and
Defendant/Counter-Plaintiff's Counter-Claim supports the following
summary of the alleged operative conduct of the parties.
On or about February 7, 1998, Williams purchased a used 1997 Oldsmobile
Cutlass from New Rogers Pontiac, Inc. in Chicago, Illinois. After
executing the Retail Installment Contract, New Rogers Pontiac assigned
the Retail Installment Contract to AmeriCredit Financial Services, The
contract required Williams to tender AmeriCredit $394.72 a month.
Williams failed to make required monthly payments to AmeriCredit and was
in default under the Contract in the sum of $3,792.41, plus interest. On
March 27, 1998, the State of Illinois issued AmeriCredit a Certificate of
Title for the vehicle.
Prior to April 30, 2003, Williams entered into an agreement with an
AmeriCredit agent that she would wire money to AmeriCredit to avoid the
repossession of her vehicle. Williams wired the money to AmeriCredit; but
on April 30, 2003, AmeriCredit had Precision Recovery repossess the
vehicle. In the early morning hours of April 30, 2003, an employee of
Precision Recovery jumped over Williams' fence and forced open a locked
garage, damaging the garage door. The Precision Recovery employee then
drove off with Williams' vehicle, including personal property contained
within the vehicle. In addition, several items from Williams' garage were
On May 2, 2003, AmeriCredit sent Williams a Notice of Right to Redeem
or Reinstate, which stated that Williams should contact AmeriCredit to
learn the identity of its agent in order to recover her personal
property. Williams also received a Notice of Plan to Sell Property, as
well as an Affidavit of Defense form. Williams contacted AmeriCredit, and
AmeriCredit provided her with Precision Recovery's contact information.
Williams never served AmeriCredit with an Affidavit of Defense and never notified AmeriCredit of any claims or defenses
that she had to the vehicle's repossession. On June 3, 2003, AmeriCredit
sold the vehicle. After applying the sales proceeds from the vehicle and
all appropriate cost and charges to Williams' account, there remains a
balance owed of $3,792.41,
Count IV of Williams' Complaint alleges that AmeriCredit violated the
Illinois Commercial Code, by its agent's, Precision Recovery's, breach of
the peace. Count V of the Complaint alleges that AmeriCredit committed an
unfair and deceptive practice in violation of 815 ILCS 505/2 when
AmeriCredit required Williams to wire money but failed to cancel the
repossession. In its Motion to Dismiss, AmeriCredit contends, as to Count
IV, that AmeriCredit had an absolute right to repossess the vehicle based
on the non-payment required by its contract with Williams and that
Williams' assertion that Precision is AmeriCredit's agent is "baseless,"
Furthermore, AmeriCredit contends Williams cannot allege any factual or
legal premise to maintain a claim against AmeriCredit for a "mythical"
violation of the ICFA, as pled in Count IV. Therefore, AmeriCredit
asserts that Counts IV and V of the Complaint should be dismissed for
failure to state claims for which relief can be granted.
In Count IV, Williams pleads mat Precision was AmeriCredit's agent.
Williams also alleges that "[a]fter the recovery of the vehicle,
Plaintiff received a notice from AmeriCredit stating to contact it to
learn the identity of its agent to recover her personal property."
Williams has sufficiently pled an agency relationship as to its ICC
AmeriCredit next argues Count IV should be dismissed because Williams
cannot maintain a prima facie cause of action for wrongful repossession.
AmeriCredit cites Valentino v, Glendale Nissan, Inc., 740 N.E.2d 538 (Ill.App.2nd Dist. 2000) in support of its
position that, because AmeriCredit had superior title, it had the right to
repossess the vehicle.
However, Williams alleges that AmeriCredit violated Section 9.609(b)(2)
of the ICC, which provides a secured party may proceed in taking
possession of the collateral "without judicial process, if it proceeds
without breach of the peace." Williams pleads that AmeriCredit violated
the Act when its agent breached the peace to repossess the vehicle.
Accordingly, Williams has sufficiently pled a violation of the ICC.
Next, AmeriCredit argues that Count V should be dismissed because
Williams has failed to allege any specific allegations as to
misrepresentations made to Williams by AmeriCredit and that any such
representation was made with the intent that she would rely on it.
There are three elements of an ICFA claim: (1) a deceptive act or
practice, (2) intent on defendant's part that plaintiff rely on the
deception, and (3) the deception occurred in the course of conduct
involving trade or commerce. Recreation Services Inc., v. Odyssey Fun
World, Inc., 952 F. Supp. 594, 596 (N.D. Ill. 1997). Here, Williams
alleges mat AmeriCredit received payment by agreeing to cancel the
repossession when it had no intention to do so and that AmeriCredit
intended for Williams to rely on its ...