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Conway v. Done Rite Recovery Services, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 30, 2015

MELVIN CONWAY, THE STATE OF ILLINOIS ex rel. MELVIN CONWAY, Plaintiffs,
v.
DONE RITE RECOVERY SERVICES, INC., AND CREDIT ACCEPTANCE CORP., Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Plaintiff alleges violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., the Illinois Collection Agency Act ("ICAA"), 225 ILCS 425/1 et seq., and the Illinois Consumer Fraud and Deceptive Practices Act ("ICFDPA"), 815 ILCS 505/1 et seq.; he also brings a conversion claim under Illinois law. Before the Court are Defendants' motion to compel arbitration [18] and Plaintiff's "demand" that the Court deny the motion to compel arbitration [23].[1] For the reasons that follow, the Court grants Defendants' motion [18] in part, compelling arbitration and staying this litigation in the interim, and denies Plaintiff's demand [23]. The parties are instructed to file a joint status report within seven days after the arbitrator issues a final decision, after which time the Court will set this case for a further status hearing. Plaintiff's other pending motion to reset a prior hearing date [13] is stricken as moot.

I. Background[2]

Pro se Plaintiff alleges that he purchased a 2004 Nissan Altima on July 6, 2012, taking out a loan from the dealer, Ideal Motors, Inc., to finance the purchase. Ideal Motors assigned the debt agreement to Defendant Credit Acceptance, Corp. ("CAC"). When Plaintiff defaulted on his loan, CAC made various collection attempts, giving rise to this complaint.

Plaintiff alleges that during the collection process, CAC made various misrepresentations in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. and the Illinois Consumer Fraud and Deceptive Practices Act ("ICFDPA"), 815 ILCS 505. More specifically, Plaintiff alleges that CAC misrepresented that the debt was a consumer loan; that he was obligated to repay the loan; that CAC was a debt collector attempting to collect a debt; that CAC had a right to collect payments from him; and that CAC had an enforceable security interest in Plaintiff's car, among other alleged misrepresentations.

Plaintiff also alleges that CAC's collection attempts violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. Specifically, he alleges that within 30 days of receiving the initial communication from CAC regarding the collection of his repossessed car, Plaintiff disputed the debt in writing. The writing allegedly contained an express revocation of any prior consent given to CAC to call him on his cell phone or any other phone. Yet CAC continued to call Plaintiff's cell phone, using automatic dialing and/or leaving automated messages.

On or around June 12, 2014, CAC allegedly assigned, transferred or otherwise engaged the services of Defendant Done Rite. On April 10, 2014, Done Rite repossessed Plaintiff's car for failure to make payments. Plaintiff allegedly redeemed the loan with a cash payment in an amount proposed by CAC but did not receive his car in return. According to the complaint, neither CAC nor Done Rite were registered debt collectors, so their collection attempts and repossession violated the Illinois Collection Agency Act ("ICAA"), 225 ILCS 425. Plaintiff also alleges that Defendants' repossession of his car constituted conversion.

CAC has attached the underlying Retail Installment Contract ("RIC") to its motion to compel arbitration and reply brief. The RIC includes an arbitration clause, providing the following:

In this Arbitration Clause, "We" and "Us" mean Seller and/or Seller's assignee (including, without limitation, Credit Acceptance Corporation) or their employees, assignees, or any third party providing any goods or services in connection with the origination, servicing and collection of amounts due under the Contract if such third party is named as a party between You and U.S. * * *
A "Dispute" is any controversy or claim between You and Us arising out of or in any way related to this Contract, including, but not limited to, any default under this Contract, [and] the collection of amounts due under this Contract[.] * * * * "Dispute" shall have the broadest meaning possible, and includes * * * claims based on tort, violations of laws, statutes, ordinances or regulations or any other legal or equitable theories. * * * You and We agree that all Disputes must be resolved on an individual basis through arbitration * * * *
Your Right to Reject: If You don't want this Arbitration Clause to apply, You may reject it by mailing Us at P.O. Box 5070, Southfield, Michigan XXXXX-XXXX a written rejection notice which describes the Contract and tells Us that You are rejecting this Arbitration Clause. * * * If You don't reject this Arbitration Clause, it will be effective as of the date of this Contract.

[49-1 at 7].

The RIC also includes an assignment provision, in which Ideal Motors gave notice of its immediate ...


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