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Covarrubias v. Bancomer

August 09, 2004

[5] JOSÉ COVARRUBIAS, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
BANCOMER, S.A., BANCOMER TRANSFER SERVICES, INC., AND OISES JAIMES, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County. Honorable Peter Flynn, Judge Presiding.

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

[8]  José Covarrubias filed a class action lawsuit against Bancomer, S.A., alleging that its money transfer service violated the Consumer Fraud and Deceptive Business Practices Act (the Act), (815 ILCS 505/2 (West 2002)). Bancomer told customers they could send money to Mexico for a set fee. José alleged that Bancomer misrepresented the actual amounts collected for the service. The trial court found that José failed to allege a deceptive act or practice. José appeals. We find that José adequately alleged a deceptive act, and therefore we reverse and remand.

[9]  On July 8, 2002, José decided to sent $100 to Marisela Garcia Covarrubias in Mexico. He went to a post office in Chicago, where the clerk told him the fee for the transaction would be $12. José signed a transaction slip and gave the clerk $112. That slip showed a "Net Sale Fee *** (Tarifa neta de transaccion)" of $12. The slip specified a "Sure Money Exchg Rate *** (Tipo de cambio de Dinero Seguro)" of 9.71 pesos to the dollar, and it showed that Marisela would receive 971 pesos. The slip also had a line that read:

[10]   "Current Interbank Exchg Rate: 0

[11]   (Tipo de cambio interbancario vigete)."

[12]   In October 2002 José filed a complaint against Bancomer, Bancomer Transfer Services, Inc. (BTS), and Moises Jaimes, president of BTS. José alleged that Bancomer and BTS, which operated the "Dinero Seguro" money transmittal services, paid considerably less than $100 for the 971 pesos delivered to Marisela, and kept the excess as profit. He claimed that defendants deceptively labeled the transaction. He sought appointment as class representative and recovery of actual and punitive damages for the deception.

[13]   Defendants Bancomer and BTS moved to dismiss the complaint for failure to state a claim for relief. See 735 ILCS 5/2-615 (West 2002).

[14]   The court said:

[15]   "[T]he representation, in fact, is as follows: For $12, we will transfer your $100 at a 9.71 pesos per dollar exchange rate. That's a perfectly truthful statement.

[16]   *** [T]he issue here is whether the defendants were under a duty to disclose that the 9.71 [exchange rate] included a profit.

[17]   *** I am simply not persuaded that *** there should be imposed on Bancomer by this Court an obligation to disclose profit, which is not imposed on almost every other provider of goods or services."

[18]   The court dismissed the complaint with prejudice. José filed a timely notice of appeal.

[19]   ANALYSIS

[20]   Because the court dismissed the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS, 5/2-615 (West 2002)), we review the judgment de novo. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147-48 (2002). We must determine whether the facts alleged, construed in the light most favorable to plaintiff, ...


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