Rehearing denied January 10, 2017
from the Circuit Court of St. Clair County, No. 15-L-200; the
Hon. Christopher T. Kolker, Judge, presiding.
Affirmed; cause remanded.
Heather L. Kramer and Jennifer A. Warner, of Dykema Gossett
PLLC, of Chicago, and Theodore W. Seitz, of Dykema Gossett
PLLC, Appeal of Lansing, Michigan, for appellant.
R. Williams and Ashley P. Cook, of Williams, Caponi &
Associates, P.C., of Belleville, for appellee.
JUSTICE CATES delivered the judgment of the court, with
opinion. Presiding Justice Schwarm [*] and Justice Goldenhersh concurred
in the judgment and opinion.
1 Plaintiff-counterdefendant, Midland Funding LLC, appeals
the circuit court's order denying its motion to compel
arbitration of a counterclaim filed by
defendant-counterplaintiff, Melissa Hilliker. For reasons
that follow, we affirm.
3 Defendant-counterplaintiff, Melissa Hilliker, obtained a
credit card from Chase Bank USA, N.A. (Chase Bank) in April
2001. Hilliker was provided with a specified line of credit
for consumer purchases, wherein she agreed to make at least
the minimum payment shown on her monthly billing statement.
4 On September 9, 2013, plaintiff-counterdefendant, Midland
Funding LLC (Midland), a company in the business of
purchasing outstanding consumer debt, filed a complaint
against Hilliker in the circuit court of St. Clair County.
Midland alleged that it was the successor in interest to
Hilliker's Chase Bank account; that Midland had purchased
Hilliker's credit card account from Chase Bank in the
regular course of business in good faith and for value; that
there was an unpaid balance of $8, 809.38 due on
Hilliker's account; that because Hilliker had failed to
make the monthly payments due on the account, Hilliker was in
default on the account; and that Midland was entitled to a
judgment for the unpaid balance, plus costs.
5 In support of its complaint, Midland attached the
"Affidavit of Kory Holst In Support Of Judgment."
In the affidavit, Holst stated that he was a "Legal
Specialist, " who had access to "pertinent account
records for Midland Credit Management, Inc. ('MCM'),
" the entity servicing this account on behalf of
Midland. Holst further stated that he was making the
statements contained in his affidavit based upon personal
knowledge. Holst averred he had reviewed MCM's account
records; that he was familiar with, and trained in, the
methods by which MCM created and maintained its records; and
that MCM's records were kept in the ordinary course of
its business. Based on his personal knowledge of the MCM
account records, Holst asserted that Midland was the
"current owner of, and/or successor to, the obligation
sued upon, and was assigned all the rights, title, and
interest" in Hilliker's credit card account with
Chase Bank. Holst stated that MCM's records showed that
Hilliker opened her account with Chase Bank on April 23,
2001; that her last payment was posted on January 13, 2009;
that the account was charged off on August 31, 2009; and that
Hilliker owed $8809.38 as of July 15, 2013. Midland did not
provide any records documenting the sale of Hilliker's
debt, or the terms of the assignment of that debt, in support
of the Holst affidavit or the complaint. Contrary to section
2-606, Midland did not provide a copy of any written
instrument upon which they based their claim for the debt,
nor did they attach an affidavit indicating that the written
instrument evidencing the debt was not accessible. 735 ILCS
5/2-606 (West 2012).
6 Midland's complaint was automatically assigned to the
St. Clair County circuit court's arbitration docket
because the amount in controversy was between $5000 and $50,
000, exclusive of costs and interest. 20th Judicial Cir. Ct.
Mandatory Arb. Rs. (eff. Aug. 2, 2004) (Civil Actions Subject
to Mandatory Arbitration, describing St. Clair County
provisions pursuant to Ill. S.Ct. R. 86 (eff. Jan. 1, 1994)).
This arbitration docket is a nonbinding, court-annexed
arbitration docket and is a part of the Illinois judicial
system. See generally Ill. S.Ct. Rs. 86 to 95 (rules
regarding arbitration). Thus, the provisions of the Illinois
Code of Civil Procedure and the rules of the Illinois Supreme
Court are applicable to the arbitration proceedings, except
where specific arbitration rules otherwise provide. See Ill.
S.Ct. R. 86.
7 On October 14, 2013, Hilliker filed an answer to
Midland's complaint, denying the main allegations,
including the allegation that Midland was the successor in
interest to the Hilliker account. Hilliker also filed a
counterclaim. Therein, she alleged that Midland's
complaint violated the Illinois Collection Agency Act
(Collection Agency Act) (225 ILCS 425/1 et seq.
(West 2012)), because Midland failed to attach the proper
documents, including the assignment documents, to its
complaint. She also alleged that in violating provisions of
the Collection Agency Act, Midland also violated the Illinois
Consumer Fraud and Deceptive ...