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Vassilkovska v. Woodfield Nissan

July 27, 2004

[5] NADEJDA VASSILKOVSKA, PLAINTIFF-APPELLEE,
v.
WOODFIELD NISSAN, INC. DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. No.03 M1 108805. The Honorable John G. Laurie, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Garcia

[8]  This interlocutory appeal stems from the trial court's denial of the defendant's, Woodfield Nissan, Inc. (Woodfield), motion to dismiss and compel arbitration. In July 2002, the plaintiff, Nadejda Vassilkovska, purchased a used automobile from Woodfield. In addition to the sales contract, the plaintiff signed an arbitration agreement (Arbitration Agreement). In February 2003, the plaintiff filed a four-count complaint against Woodfield. In April 2003, Woodfield filed a motion to dismiss and compel arbitration. In May 2003, the trial court heard arguments on Woodfield's motion and denied it. This interlocutory appeal followed with Woodfield seeking reversal of the trial court's May 2003 order denying Woodfield's motion to compel arbitration.

[9]  BACKGROUND

[10]   In July 2002, the plaintiff purchased a used 2000 Nissan Sentra from Woodfield. The purchase contract, signed by both parties, indicated an "unpaid balance" of $4,598.44. The plaintiff also signed an Arbitration Agreement. In pertinent part the parties' Arbitration Agreement stated:

[11]   "That in consideration for your agreement to this Arbitration Agreement, we hereby waive any and all rights to pursue any legal action in a court of law, with the exception of those actions specifically excluded herein. ***

[12]   A 'Dispute' is any controversy or claim (other than: a claim relating to the buyer's failure to pay an agreed upon down payment or failure to pay any amount due pursuant to a promissory note executed in lieu of a cash down payment: as to the issuance, by buyer, of a check which is not honored by the buyer's bank; a buyer's failure to provide good title to a trade-in vehicle; a misrepresentation, by buyer, concerning the amount remaining due on any loan concerning a trade-in vehicle; any claim relating to the possession, repossession or replevin of the vehicle; or relating to actions to enforce any Retail Installment Contract executed by you in connection with the purchase of the vehicle) arising from or relating to the vehicle you have purchased from us on the date shown above. *** The term 'dispute' also includes any questions regarding whether a matter is subject to arbitration under this Arbitration Agreement."

[13]   Basically, in the parties' Arbitration Agreement the plaintiff agreed to waive her right to pursue any cause of action, related to the sales transaction for the car, in a court of law. In turn, Woodfield agreed to waive all rights to pursue any legal action in a court of law, except for the following enumerated claims: (1) the plaintiff's failure to pay according to the purchase contract; (2) the plaintiff's check not being honored by her bank; (3) the plaintiff's failure to provide good title on a trade-in vehicle; (4) the plaintiff's misrepresentation concerning the loan amount due on any trade-in vehicle; (5) any claim relating to possession, repossession, or replevin of the automobile; and (6) any action to enforce any retail installment contract executed by the purchaser.

[14]   Sometime later, the plaintiff received a financing agreement from her lender that indicated an unpaid balance of $7,235.12 on her vehicle. The plaintiff noticed a $2,636.68 discrepancy between the "amount due" on the purchase contract and on the financing agreement. In February 2003, the plaintiff filed a four-count complaint against Woodfield alleging a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.) (West 2000)), common law fraud, a violation of the Truth in Lending Act (15 U.S.C. §1601(a) (2000)), and a violation of the Credit Services Organizations Act (815 ILCS 605/1 et seq. (West 2000)). According to the plaintiff's complaint, her allegations of fraud stemmed from Woodfield's misrepresentations "regarding the price of the Sentra and the costs of financing the vehicle." The plaintiff's complaint specifically alleged:

[15]   "6. Defendant represented to plaintiff that financing was approved such that there existed an outstanding balance of $4,598.41 to be paid over three (3) years at $154.00 per month.

[16]   7. Defendant misrepresented, omitted or otherwise concealed that:

[17]   a. The outstanding balance on the financing agreement was $7,235.12

[18]   b. The balance was to be paid over five (5) years." Woodfield filed a motion to dismiss and compel arbitration arguing that the Cook County circuit court was the improper venue for the complaint pursuant to the parties' Arbitration Agreement.

[19]   The plaintiff responded to Woodfield's motion by emphasizing several facts. Specifically, the plaintiff was looking to purchase a vehicle, she told the sales person her spending limit was between $5,000 and $7,000, the sales person showed her a $9,000 automobile, and he convinced her to attempt financing to afford the vehicle. Plaintiff alleged that after being convinced to purchase the vehicle, she was given a contract with an "unpaid balance" of $4,598.41 and the sales person told her she would pay $154 per month for three years. However, when she received a payment book from the lender, the unpaid loan balance was shown as $7,235.12 with payments spanning five years. The plaintiff argued that (1) the Arbitration Agreement should not be enforced because she was seeking rescission of the entire sales contract, including the Arbitration Agreement; (2) there was a lack of consideration supporting the Arbitration Agreement; and (3) Woodfield's attempt to defeat the plaintiff's substantive rights under the consumer fraud act was unconscionable and against public policy.

[20]   Woodfield responded to the plaintiff's arguments by noting that the parties' Arbitration Agreement specifically allowed an arbitrator to decide if a controversy was subject to the Arbitration Agreement. Also, Woodfield argued, as subsequently stated in its brief before this court, that "it has agreed to arbitrate any and all claims that the plaintiff could bring. In so agreeing, [it] agreed to forbear its right to seek judicial review of those issues." Finally, ...


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