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Bellik v. Bank of America

June 8, 2007

VINCENT BELLIK, PLAINTIFF-APPELLANT,
v.
BANK OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 04 M1 137529 Honorable Judge James F. Stack, Presiding.

The opinion of the court was delivered by: Justice O'malley

The instant cause involves third-party litigation wherein Vincent Bellik, as a third-party plaintiff, filed a third-party complaint against a number of third-party defendants, including Bank of America.*fn1

Bellik appeals from the circuit court's order that dismissed with prejudice his third-party complaint against Bank of America pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2004)). On appeal, Bellik contends that the circuit court erred when it dismissed his complaint because it was sufficient as a third-party complaint against Bank of America. Alternatively, Bellik contends that the circuit court erred in dismissing his complaint with prejudice where its purported defects could be cured by amendment. For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

The instant cause arose from litigation initiated by Harris Bank*fn2 against Vincent Bellik for money owed under a sales contract for a 2002 Dodge Dakota (hereinafter referred to as Harris Bank litigation). Following repossession and sale of the Dakota in January 2004, Harris Bank recovered a deficiency judgment against Bellik for $9,846.23.

In February 2005, as a result of the Harris Bank litigation, Bellik, as third-party plaintiff, filed a "third party complaint for declaratory judgment and other relief" against three third-party defendants, namely: (1) vehicle dealer Gerald Gorman, individually and doing business as Dodge of Midlothian (Gorman); (2) Daimler Chrysler Services North America, LLC. (Chrysler); and (3) Bank of America. This complaint is the subject of the instant appeal.

Bellik's complaint alleged, in pertinent part, that he traded in the Dakota (the vehicle at issue in the Harris Bank litigation) to Gorman in connection with a sales contract for Bellik's purchase of a 2003 Dodge Stratus (hereinafter Stratus sales contract). Bellik further alleged that, pursuant to the Stratus sales contract, "O'Gorman*fn3 [sic] and Chrysler had an obligation to promptly submit the payoff" of Harris Bank's lien on the Dakota. According to Bellik, Gorman and Chrysler failed to satisfy Harris Bank's lien on the Dakota, which constituted breaches of their contractual and fiduciary duties. Bellik further claimed that Bank of America was obligated under the Stratus sales contract because it was "listed as a party" in that contract.

Bellik attached to his complaint the Stratus sales contract, which was dated September 29, 2003. In regard to the Dakota, the Stratus sales contract indicated that Bellik had traded in a "2002 Dodge Dakota" with a value of $20,000 and a lien payoff in the amount of $19,863, for a net trade of $137. The purchase price of the 2003 Stratus was $33,418.43. In regard to Bank of America, the Stratus sales contract, in its entirety, referenced Bank of America in one sentence, specifically, as follows:

"Buyer promises to pay to the order of seller at the offices of Bank of America (Assignee) located in Jacksonville, Illinois, the amount financed shown above together with a finance charge on the principal balance of the amount financed from time to time unpaid at the rate of 6.59% per annum from date until maturity in 71 installments of $518.11 each and a final installment of $518.11, beginning on November 13, 2003 and continuing on the same day of each successive month thereafter until fully paid."

Ultimately, Bellik's complaint contained three counts, all of which were based on Gorman's and Chrysler's purported failure to pay off Harris Bank's lien on the Dakota in connection with Bellik's purchase of the Stratus. First, Bellik requested a declaratory judgment that the balance owed by him under the Stratus sales contract was "null and void," and that he was the owner of the Stratus. Second, Bellik requested damages based on Gorman's and Chrysler's alleged breach of contract. Third, Bellik requested damages based on Gorman's and Chrysler's alleged breach of fiduciary duty. Bellik also sought an "offset" of the debt due to Bank of America under the Stratus sale contract, relying on certain contractual language related to consumer credit issues.

In September 2005, Bank of America filed a motion to strike Bellik's third-party complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)), arguing that none of Bellik's claims properly constituted a third-party claim under section 2-406(b) of the Code (735 ILCS 5/2-406(b) (West 2004)). Bank of America further argued that, assuming Bellik's claims properly constituted third-party claims, they should be stricken as legally insufficient. Bank of America also asserted that Bellik's claims against it should be dismissed with prejudice because they failed on their merits as a matter of law.

In November 2005, Bellik filed a response to Bank of America's motion to dismiss, arguing that his complaint was properly filed as a third-party complaint and that his claims were legally sufficient.

In January 2006, the circuit court granted Bank of America's motion to dismiss Bellik's third-party complaint and dismissed it with prejudice as to Bank of America only. The court adopted the reasoning set forth in Bank of America's motion to strike.

In February 2006, Bellik filed a motion to reconsider the circuit court's January 2006 decision, primarily challenging the circuit court's dismissal with prejudice, and requesting the circuit court to either reverse its decision and permit an amendment of the ...


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