Appeal from the Circuit Court of Cook County No. 08 M1 162091 Honorable Dennis McGuire, Judge Presiding.
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Karnezis concurred in the judgment and opinion.
This appeal presents two certified questions. First, under section 8b of the Collection Agency Act (225 ILCS 425/8b (West 2008)), can a collection agency establish an assignment of accounts receivable for collection purposes through documents attached as exhibits to a complaint, where the identification of the accounts transferred, the consideration paid, and the effective date of the transfer of particular accounts are in multiple incorporated documents or affidavits? Second, does a collection agency have standing to sue under section 2-403 of the Code of Civil Procedure (735 ILCS 5/2-403 (West 2008)), where that agency pleads and proves that it has legal title to accounts receivable assigned "for collection purposes only"? We answer the first question in the affirmative with qualifications, and the second question in the affirmative.
We limit our recitation of the underlying facts of this case to only those that are necessary for a full discussion of the certified questions. The issues presented by the certified questions arose in the context of a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)), so for the purpose our discussion of the certified questions we will rely on facts alleged in the complaint and its attached affidavits. See Coady v. Harpo, Inc., 308 Ill. App. 3d 153, 158-59 (1999).
In 1996, defendant Mohammad Shah opened a credit card account with Citibank (South Dakota) N.A. Over the next nine years defendant ran up a significant balance on the account, eventually totaling close to $16,000. Defendant allegedly failed to make monthly payments on the debt as required by his account contract with Citibank and he eventually fell into default. Rather than personally collect the debt, however, Citibank chose to sell its interest in defendant's account to a third party. This decision began the series of transactions that are at issue in this case.
According to the complaint, Citibank sold defendant's account to a
company called Unifund Portfolio A, L.L.C., on October 3, 2006. On
that same day, Portfolio A sold the account to Cliffs Portfolio
Acquisition I, L.L.C. On May 28, 2003, Cliffs Portfolio assigned its
legal interest in the account to Palisades Collection, L.L.C., in
order to enable Palisades to collect on the account. However, Cliffs
Portfolio purported to retain an equitable interest in the debt
itself. Finally, on that same day Palisades assigned its interest in
the account to the plaintiff in this case, Unifund CCR Partners.
Simply put, the complaint alleges that legal title to defendant's
account passed from the original creditor to plaintiff through a
series of intermediate transactions. The complaint alleges that
plaintiff now holds sufficient title to the account in
order for it to bring suit against defendant and collect
Plaintiff's complaint was dismissed three times for failure to adequately allege and support the chain of title that is described above, and it was not until plaintiff filed its third amended complaint that the sequence of alleged transactions became clear. In support of the allegations on the face of the complaint, plaintiff attached the affidavit of Bobby Carnes, an employee of plaintiff, in which Carnes explained the series of transactions. Carnes further testified that he had reviewed plaintiff's internal records related to defendant's account, which allegedly demonstrated that legal title to the account had been transferred to plaintiff for collection purposes. Carnes attached a number of documents to his affidavit that purported to be contracts of sale and assignment for defendant's account along with other incorporated agreements.
Defendant again moved to dismiss the complaint, arguing that the purported assignments of his account were inadequate under section 8b of the Collection Agency Act (225 ILCS 425/8b (West 2008)). Defendant asserted that the assignments were invalid because crucial information was scattered over multiple documents. In essence, defendant argued that the assignments failed to satisfy section 8b because the account information, consideration paid, and effective date of assignment were not contained in a single document.
After full briefing and oral argument, the circuit court denied
defendant's motion to dismiss. However, the circuit court acknowledged
that the law in this area is unclear. At the request of both parties,
the circuit court certified two questions for our review under
Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994). We granted
defendant's petition for leave to appeal,
and this case is now before us.
The certified questions present two separate but related issues. First, can a plaintiff properly plead the existence of an assignment under section 8b of the Collection Agency Act (225 ILCS 425/8b (West 2008)) through multiple documents attached to the complaint, or must the assignment be evidenced by a single document? Second, does an assignee for collection only of a debt have standing to sue in its own name?
Because this appeal is before us pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994), our analysis is "strictly limited to the certified question[s] presented to the court." Long v. Elborno, 397 Ill. App. 3d 982, 988 (2010). We review de novo the questions of law presented. See id. " ' "Our task is to answer the certified questions rather than to rule on the propriety of any underlying order." ...