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Burns v. Asset Acceptance

June 8, 2006


The opinion of the court was delivered by: Charles P. Kocoras, Chief District Judge


The following matter is before the court on the motion of Defendant, Asset Acceptance, LLC ("Asset Acceptance"), to dismiss Counts III and IV of Plaintiff's, Venus Burns ("Burns"), first amended complaint. For the reasons set forth below, the motion is denied.


The relevant facts are gleaned from the allegations set forth in Burns' first amended complaint, which, for present purposes, we are obligated to accept as true. In April 2004, Burns, an Illinois resident, applied for employment via the Internet with Asset Acceptance, a limited liability company organized under the laws of Delaware that regularly does business in Illinois. In that same month, Burns was invited to Asset Acceptance's Chicago Office for an interview, was interviewed at the Chicago Office by Vida Rolic ("Rolic"), and filled out a written application. In June 2004, Asset Acceptance invited Burns back to the Chicago Office for a second interview, which was conducted via telephone with an employee of Asset Acceptance's Corporate Office located in Michigan. Rolic was also present at the second telephone interview. On approximately August 16, 2004, Asset Acceptance offered Burns employment at the Chicago Office. Burns advised Asset Acceptance that she accepted the offer and would resign from her current position of employment.

On August 23, 2004, Burns arrived for her first day of work at the Chicago Office. At approximately 8:30 a.m., Burns was presented with a number of documents to sign. Among the documents presented was an agreement entitled "Delinquent Accounts," which stated in pertinent part:

If you have an account that has been purchased by Asset Acceptance LLC, Financial Credit LLC or Consumer Credit LLC, you must make arrangements to clear it up. Standard procedure is to tell your supervisor you have an account and make repayment arrangements. If you have run into some problems, please see Phil Allen immediately.

Burns signed the Delinquent Accounts form despite not being advised of it prior to the employment offer and her acceptance thereof. Subsequently, Burns was given and told to read an Employee Handbook, of which the Delinquent Accounts form was not a part. Burns was then sent out of the office for training, and did not return until approximately 4:00 p.m. that same day.

When Burns returned to the Chicago Office, she was informed that Asset Acceptance had checked her credit report, that adverse credit information had been discovered, and, consequently, that she was terminated effective immediately. Burns alleges that Asset Acceptance did not disclose that it was going to check her credit report and that she was unaware that any of her accounts had been purchased by Asset Acceptance LLC, Financial LLC or Consumer Credit LLC. Burns asked for time to make payment arrangements on any delinquent accounts discovered in her credit report, but her request was denied and she was required to return the Employee Handbook. Asset Acceptance did not provide Burns with a copy of her credit report at the time of her termination or a written description of her consumer rights.

On November 29, 2005, Burns filed a four count complaint in the Circuit Court of Cook County. The case was effectively removed to this court on January 1, 2006. On March 9, 2006, Burns filed her first amended complaint, which was comprised of four counts: Counts I and II allege violations of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681; Count III alleges a claim for Wrongful Termination/Promissory Estoppel; and Count IV alleges a claim for Wrongful Termination/Equitable Estoppel. Subsequently, on March 29, 2006, Asset Acceptance filed the instant Motion to Dismiss Counts III and IV of Burns' first amended complaint.


The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of a complaint. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, a court must construe the allegations of the complaint in the light most favorable to the plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). The allegations of a complaint should not be dismissed for failure to state a claim "unless 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, 78 S.Ct. 99 (1957). Further, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). With these principles in mind, we turn to the instant Motion.


As an initial matter, Asset Acceptance argues that Burns' disputed claims should be dismissed because the alleged employment agreement at the center of this dispute violates the statute of frauds, 740 ILCS § 80/1, which provides in relevant part that:

No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be ...

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