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Cesar Gamboa, Ruben Nava and Mauro Lopez v. Jose Alvarado and Marco's Digital Video and Photography

January 11, 2011

CESAR GAMBOA, RUBEN NAVA AND MAURO LOPEZ,
PLAINTIFFS-APPELLANTS,
v.
JOSE ALVARADO AND MARCO'S DIGITAL VIDEO AND PHOTOGRAPHY, INC.,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 09 CH 48728 Honorable William Maki, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

JUSTICE KARNEZIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

Plaintiffs Cesar Gamboa, Ruben Nava and Mauro Lopez filed a complaint alleging common law fraud, unjust enrichment, civil conspiracy, intentional infliction of emotional distress and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2008)) (Consumer Fraud Act) against defendants Jose Alvarado and Marco's Digital Video & Photography, Inc. (Marco's Digital Photography). Plaintiffs alleged they were the victims of an "immigration scam" perpetuated by defendants wherein defendants falsely promised plaintiffs they would obtain legalization or citizenship documents for plaintiffs. Plaintiffs each paid defendants $15,000 but defendants did not deliver on their promises and refused to return plaintiffs' money. The court dismissed the complaint, finding the underlying contract was illegal and thus unenforceable. On appeal, plaintiffs argue the court erred in dismissing their complaint because (1) illegality of contract is not a proper defense against the causes of action pled in their complaint; (2) illegality of contract is not a defense to the Consumer Fraud Act's regulation of immigration service providers; and (3) the court's public policy determinations were inconsistent with the public policy of the Illinois legislature and Illinois precedent. We reverse.

Background

On December 7, 2009, plaintiffs (individually referred to as Gamboa, Nava and Lopez) filed a five-count verified complaint against defendants alleging (count I) violations of the Consumer Fraud Act; (count II) common law fraud; (count III) unjust enrichment; (count IV) civil conspiracy; and (count V) intentional infliction of emotional distress. The following course of dealings between the parties is taken from plaintiffs's complaint.

In early 2006, Alvarado told plaintiffs he could obtain "authentic citizenship documents" for plaintiffs through a contact at the United States Consulate office in Ciudad Juarez, Mexico, and plaintiffs would be able to use the documents to obtain social security numbers. He stated his contact could influence both American and Mexican immigration officials to expedite the application process but would need to pay employees in the different departments to obtain the necessary releases. The cost for adjustments to legal permanent residency status would be $12,000 per person and to obtain United States citizenship would add an additional $3,000 per person.

Alvarado stated he and his brother were obtaining their citizenship documents through the contact and invited plaintiffs to join their group. He explained that once the contact obtained the necessary documents, the group would travel across the Mexican border and pick up the documents at the consulate office after having photos and fingerprints taken and a short interview. If plaintiffs could get their money to him by the end of June 2006, they could have their documents by October. Otherwise there would be a six-month delay.

Plaintiffs each made payments totaling $15,000 to Alvarado over a period of months and received receipts from Marco's Digital Photography in return for their payments. Alvarado explained he was providing receipts from his business to assure plaintiffs that the process was legitimate. Gamboa made some of his payments at Alvarado's home and at Marco's Digital Photography. Nava and Lopez alleged Alvarado used "high-pressure tactics" to get the payments by the June deadline, calling them weekly until they had paid in full. Nava did not make his final payment until October 2006. Alvarado informed plaintiffs that, because the deadline had not been met, there would be a delay and plaintiffs would not receive their documents until December 2006.

In February 2007, Alvarado told Gamboa that Gamboa's documents were ready and Gamboa needed to make plane reservations to fly to El Paso in order to cross the border and get the documents. Gamboa went to Marco's Digital Photography where Alvarado "purchased" the reservations for $500 plus a $25 credit card fee. Shortly before Gamboa was to leave, Alvarado told him his Mexican contact would not be able to get the documents and the trip was cancelled. Alvarado refunded Gamboa's $500 but not the $25 fee.

Plaintiffs regularly called Alvarado inquiring about the status of their documents. Alvarado avoided plaintiffs. After repeated calls from plaintiffs, he told them that his contact had suffered a heart attack which would delay obtaining the documents. He gave Lopez his contact's phone number in Mexico. Lopez spoke to the contact, "Jose de Jesus Castellanos," who confirmed Alvarado's version of heart attack-induced delay. At some later point, Alvarado stated the delays were due to problems in Phoenix and El Paso, which "Castellanos" confirmed when Gamboa called him.

In March 2009, Alvarado met with plaintiffs and told them that there was nothing he could do for them. He stated they had all been swindled by Castellanos and it was necessary to bring legal action in Mexico. He requested plaintiffs each pay him $200 to hire a Mexican lawyer and sign a power of attorney. Lopez and Nava paid and signed the power of attorney. Gamboa refused and demanded his money back. Alvarado subsequently called Nava and Lopez, asking if they knew what Gamboa was planning and threatened them that if Alvarado "fell, they would all fall."

Plaintiffs pressed Alvarado to return their money. In September 2009, Alvarado told Nava and Lopez the lawsuit was no longer a viable option and explained his new plan was to hire thugs in Mexico to kidnap Castellanos and get the money back from Castellanos in return for Castellanos' release. If Castellanos did not return the money, Alvarado implied the kidnappers would kill Castellanos. Nava and Lopez told Alvarado they were opposed to the violence and did not want to be part of the kidnaping scheme. On October 29, 2009, Alvarado told Nava and Lopez the kidnaping was on hold.

Plaintiffs' complaint alleged defendants engaged in numerous instances of unfair and deceptive practices in the conduct of trade or commerce in violation of section 2AA of the Consumer Fraud Act (815 ILCS 505/2AA (West 2008)), which governs private providers of immigration assistance services. Plaintiffs also alleged defendants committed common law fraud by inducing plaintiffs to rely on their misrepresentations; defendants were unjustly enriched by the monies plaintiffs paid them; defendants engaged in a civil conspiracy to defraud plaintiffs; and defendants intended to inflict emotional distress on plaintiffs by making the malicious statements that if Alvarado fell, they would all fall. Plaintiffs requested the court enjoin defendants from engaging in conduct relating to the provision of immigration ...


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