{ "id": 126364, "name": "STEVEN L. OLDENDORF et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION et al., Defendants Appellees", "name_abbreviation": "Oldendorf v. General Motors Corp.", "decision_date": "2001-06-07", "docket_number": "No. 2 \u2014 00\u20140343", "first_page": "825", "last_page": "832", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 825" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "15 U.S.C. \u00a7 2301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "251 Ill. 396", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3434776 ], "weight": 3, "year": 1911, "pin_cites": [ { "page": "401" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill/251/0396-01" ] }, { "cite": "18 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2608935 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0123-01" ] }, { "cite": "229 Ill. App. 3d 1032", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5216443 ], "year": 1992, "pin_cites": [ { "page": "1039" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/1032-01" ] }, { "cite": "297 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910271 ], "year": 1998, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0639-01" ] }, { "cite": "169 Ill. 2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909171 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0110-01" ] }, { "cite": "311 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415292 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "684" }, { "page": "684" }, { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0679-01" ] }, { "cite": "16 C.F.R. \u00a7 433.2", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 1975, "opinion_index": 0 } ], "analysis": { "cardinality": 791, "char_count": 16667, "ocr_confidence": 0.787, "pagerank": { "raw": 8.714971267090446e-08, "percentile": 0.4935476933211164 }, "sha256": "25a26c069c0a5ad9cf11055a60be7b555a9f25a15092a9433f44b22f0e4ca0fc", "simhash": "1:b29ad7577b1fecee", "word_count": 2692 }, "last_updated": "2023-07-14T19:05:07.459628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STEVEN L. OLDENDORF et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION et al., Defendants Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nPlaintiffs, Steven and Dana Oldendorf, appeal the circuit court\u2019s order granting the motion of defendant Dan Wolf Pontiac-GMC Trucks, Inc. (Wolf), to dismiss counts IV and V of plaintiffs\u2019 amended complaint. Plaintiffs also appeal the court\u2019s order granting motions for summary judgment in favor of defendants Harris Bank Barrington, N.A. (Harris Bank), and Judicial Recovery Systems, Inc. (JRS), as to counts VII and VIII of plaintiffs\u2019 amended complaint. (Plaintiffs pleaded two count VIIs in their original complaint, which were repeated verbatim in their amended complaint; for purposes of this opinion, we refer to the second count VII as count VIII.) We affirm the trial court\u2019s judgment granting summary judgment against plaintiffs as to counts VII and VIII of their amended complaint and reverse the court\u2019s judgment dismissing counts IV and V of the amended complaint. The portion of our opinion regarding counts VII and VIII will not be published.\nBACKGROUND\nPlaintiffs purchased a used 1995 Pontiac Bonneville from Wolf on December 27, 1997. Plaintiffs financed the purchase and executed a retail installment agreement, which contained the following provisions:\n\u201cSECURITY INTERESTS: Seller is granted a purchase-money security interest in the motor vehicle described above and all accessories under the Illinois Uniform Commercial Code until the Total of Payments and all future indebtedness for taxes, liens, repairs and insurance premiums advanced by holder hereunder are paid in full.\nACCELERATION: Buyer agrees that (1) if Buyer shall default in the payment of any installment of the Total of Payments or any other indebtedness due hereon *** the holder may declare all unpaid installments of the Total of Payments and all other indebtedness secured hereby immediately due and payable, without notice or demand.\n* * *\n5. Upon the occurrence of any event of default, the holder of this contract shall have the rights and remedies provided by Article 9 of the Illinois Uniform Commercial Code including, but not by way of limitation, the rights of the holder (a) to take immediate possession of the motor vehicle, with or without judicial process.\u201d\nAs required by section 433.2 of the Code of Federal Regulations (FTC Rule) (16 C.F.R. \u00a7 433.2 (1975)), the agreement also contained the following language:\n\u201cNOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.\u201d\nThe financing agreement subsequently was assigned to Harris Bank, which is identified as \u201cFirst Lienholder\u201d on the certificate of title. No other security interest is identified on the certificate of title. Plaintiffs concede on this appeal that Harris Bank has a perfected security interest in the car under Article 9 of the Uniform Commercial Code (UCC) (810 ILCS 5/9 \u2014 101 et seq. (West 1998)).\nAt the time of purchase, plaintiffs paid $620 for \u201cGeneral Motors Protection Plan Major Guard Coverage\u201d (GMPP contract), which was issued by defendant General Motors Corporation (GM). Plaintiffs also executed a form entitled \u201cContract Registration,\u201d which was completed at the time the car was purchased. Our analysis of the content of the registration form will be provided below.\nIn November 1998, plaintiffs sent notice to Wolf, GM, and Harris Bank of their intent to revoke their acceptance of the car. Plaintiffs alleged that the car was defective, and unsafe and unreliable as a result, because the car excessively leaked oil in spite of repeated attempts to repair the problem. They requested the cancellation of the \u201ccontracts,\u201d the return of all payments made, and compensation for their damages. The notice was silent as to the nature and the dollar amount of the damages claimed. Plaintiffs also stated that they would make no further payments under the financing agreement and maintained that repossession was prohibited because they were also \u201casserting their security interest in the vehicle, pursuant to 810 ILCS 5/2 \u2014 711, which [gave] them a superior right to possession over any lien holder.\u201d\nOn or about March 19, 1999, JRS, under contract with Harris Bank, repossessed the car. Plaintiffs filed their initial complaint on March 22, 1999. On December 29, 1999, plaintiffs filed an amended complaint alleging, in pertinent part, violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. (West 1998)), common-law fraud, and conversion. Counts IV and V alleged violation of the Consumer Fraud Act and common-law fraud, respectively, against GM and Wolf, its authorized dealer. Counts VII and VIII alleged conversion and violation of the Consumer Fraud Act, respectively, against Harris Bank and JRS. On Wolfs motion, the trial court dismissed counts IV and V pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 1998)). On motions brought by Harris Bank and by JRS, the court granted summary judgment against plaintiffs on counts VII and VIII, pursuant to section 2 \u2014 1005 of the Code (735 ILCS 5/2\u2014 1005 (West 1998)). This appeal followed.\nANALYSIS\nA section 2 \u2014 615 motion attacks the legal sufficiency of a complaint by asserting that it fails to state a cause of action upon which relief can be granted. Carroll v. Faust, 311 Ill. App. 3d 679, 684 (2000). In ruling on such a motion, only those facts apparent from the face of the pleadings, matters of which the court may take judicial notice, and judicial admissions in the record may be considered. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 115 (1995). All well-pleaded facts alleged in the complaint and all reasonable inferences from them are to be taken as true (Mt. Zion, 169 Ill. 2d at 115), and the allegations are to be viewed in the light most favorable to the plaintiff (Carroll, 311 Ill. App. 3d at 684). Our review of the granting of such a motion is de nova. Carroll, 311 Ill. App. 3d at 684.\nCount IV alleges violation of the Consumer Fraud Act. In order to set forth a cause of action under the Act, a complaint must set forth specific facts that establish each of the following elements: (1) a deceptive act or misrepresentation of a material fact by the defendant; (2) the defendant\u2019s intention that the plaintiff rely on the deception or misrepresentation; and (3) that the deception or misrepresentation occurred in the course of business. Gragg v. Calandra, 297 Ill. App. 3d 639, 647 (1998).\nPlaintiffs alleged that, \u201cat all times relevant,\u201d defendants were engaged in trade or commerce and that the following \u201crepresentations and/or omissions\u201d were made to plaintiffs:\n\u201c(a) Defendant represented in writing to Plaintiffs that the duration of the GM Protection Plan (\u2018GMPP\u2019) purchased by Plaintiffs for $620.00 was 5 years/60,000 miles from the date of purchase. (Exhibit \u2018B\u2019).\n10. The representations and/or omissions set forth above were made with the intent that Plaintiffs rely on them.\n11. The representations and/or omissions set forth above were false and untrue, or Defendant Dealer committed unfair and/or deceptive acts, in that Defendant; [sic]\n(a) failed to disclose that coverage under the GMPP had begun to run on 1/12/95, 2 years before Plaintiffs\u2019 purchase;\n(b) failed to disclose that coverage under the GMPP would expire in two years, rather than in 5 years, from the date of purchase.\u201d\nThe \u201cContract Registration\u201d form, which was attached to the amended complaint as Exhibit \u201cB,\u201d identified the car purchased by plaintiffs as a GM certified used vehicle. The form indicated that the car\u2019s odometer mileage was 18,734, the purchase date was December 27, 1997, and the car was originally placed \u201cin service\u201d on January 12, 1995. Limited warranty information was provided next. The form explained that, on vehicles covered under the 48-month/50,000 mile and 60-month/62,000 mile limited warranties, the \u201ctime and mileage limits begin on the date the vehicle was first delivered as a new vehicle or put into service and at zero (0) miles.\u201d On vehicles covered under the 12-month/12,000 mile warranty, the \u201ctime and mileage limits begin on the vehicle purchase date and at the mileage shown above.\u201d\nBeneath the limited warranty information was a section explaining optional coverage. The form explained that the following optional coverage was available to plaintiffs at the price of $620.00:\n\u201cGM Certified Used Vehicles with remaining new vehicle limited warranty are eligible for the following plans:\n\u00a1x] 60 Months/60,000 Miles\n\u25a1 72 Months/75,000 Miles\n\u25a1 72 Months/100,000 Miles.\u201d (Emphasis in original.)\nThe reverse side of the form contained the following language:\n\u201cPurchase Provisions \u2014 Optional General Motors Protection Plan Major Guard Coverage!:]\nMechanical coverage applies only to parts manufactured or supplied by General Motors. Coverage does not apply to Non-GM parts, even if they meet manufacturer\u2019s specifications.\n1. Upon acceptance of this Registration, mechanical coverage begins on the purchase date of the optional coverage. The term of the agreement includes the term of the new vehicle limited warranty.\nA. The time and mileage limits of any Plan greater than 36 months or 36,000 miles commence on the same date as the new vehicle limited warranty and at 0 miles, and end at the earlier of the selected time/mileage option.\nB. The time and mileage term of any Plan less than or equal to 36 months or 36,000 miles will be calculated from the date and mileage on the vehicle on the date of the purchase of this optional coverage. These plans can be purchased only at the time of vehicle purchase.\u201d (Emphasis added.)\nViewing the allegations of count IV in the light most favorable to plaintiffs, we conclude that plaintiffs did allege sufficient facts to state a cause of action under the Consumer Fraud Act. The contract registration form described the coverage purchased by plaintiffs as \u201c60 Months/60,000 Miles.\u201d \u201c[M]echanical coverage\u201d was to begin \u201con the purchase date of the optional coverage\u201d; however, two sentences later, the document provided that the \u201ctime and mileage limits\u201d already commenced \u201con the same date as the new vehicle warranty and at 0 miles.\u201d The form did not clearly or accurately disclose the beginning date of coverage or the actual period of coverage. Furthermore, while the \u201ctime and mileage limits\u201d pursuant to the standard limited warranties were listed in the \u201cLimited Warranty\u201d box, the limits under the optional coverage, which plaintiffs purchased, were listed on the back of the page, separate from the options and their costs. While poor drafting and design of a legal document do not constitute fraud, deliberate obfuscation of the truth with vague, misleading, and contradictory language and concealed clauses may be fraudulent.\nWe further observe that the so-called \u201c60 Months/60,000 Miles\u201d plan could never provide 60 months or 60,000 miles of coverage to plaintiffs. Each day that the vehicle sat on the lot unsold, the potential length of the coverage decreased; plaintiffs only received approximately 24 months of coverage under this \u201c60 Month\u201d plan. Plaintiffs also could never receive more than 41,266 miles of coverage, as the vehicle had already been driven 18,734 miles. While we need not here determine whether plaintiffs will be able to prove to a fact finder that the confusing language and design of the contract rise to the level of fraud, we do conclude that plaintiffs have alleged a cause of action in count IV of their amended complaint. Therefore, the trial court erred in granting the motion to dismiss as to count IV\nWe similarly conclude that plaintiffs alleged sufficient facts in count V to state a cause of action. In order to set forth a cause of action for common-law fraud, a complaint must set forth specific facts that establish each of the following elements: \u201c(1) a statement by defendant; (2) of a material nature as opposed to opinion; (3) that was untrue; (4) that was known or believed by the speaker to be untrue or made in culpable ignorance of its truth or falsity; (5) that was relied on by the plaintiff to his detriment; (6) made for the purpose of inducing reliance; and (7) such reliance led to the plaintiffs injury.\u201d Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1039 (1992).\nPlaintiffs realleged the allegations of count IV and further alleged:\n\u201c14. The misrepresentations and/or failures to disclose as set forth above were made with the intent that Plaintiffs rely on them, and Plaintiffs did, in fact, justifiably rely on them to their detriment.\n15. As a result of the misrepresentations and/or failures to disclose set forth above, Plaintiffs have suffered various damages and losses.\n16. Defendants\u2019 conduct as set forth above constitutes fraud against Plaintiffs.\n17. The misrepresentations and/or failures to disclose set forth above were made wilfully and intentionally or in reckless disregard of the truth or falsity of said misrepresentations or failures to disclose.\u201d\nPlaintiffs have alleged that the contract registration form, which was written by defendants, falsely described the warranty coverage that plaintiffs purchased. This is clearly of a material nature. Plaintiffs also have alleged the requisite scienter and intent on the part of defendants and reliance and injury on the part of plaintiffs. Count V clearly states a cause of action sounding in fraud.\nDefendants rely on Filosa v. Pecora, 18 Ill. App. 3d 123 (1974), for the proposition that an agreement that is available to both parties cannot form the basis of an action for fraud. In Filosa, the appellate court, citing Paine v. Doughty, 251 Ill. 396 (1911), stated:\n\u201cA written contract cannot be set aside on the ground that it is fraudulent where the alleged fraudulent provision appears on the face of the contract so that it was equally open to the knowledge of both parties, or where the party charged with the fraud neither urged its acceptance upon the other nor misled or induced the other to accept and execute it by any statement or misrepresentation as to its meaning or legal effect.\u201d Filosa, 18 Ill. App. 3d at 127.\nHowever, in determining whether an allegedly fraudulent provision is \u201cequally open to the knowledge of both parties,\u201d the drafter of the document must be considered. See Paine, 251 Ill. at 401. In Paine, there was no evidence as to which party prepared the contract in issue; this factor, along with the others cited in Filosa, was considered in the court\u2019s determination that a party to the contract in question could not claim that the contract was fraudulent. See Paine, 251 Ill. at 401. The party drafting a document has greater knowledge of the document and also has the opportunity to use the language and form of the document to his advantage. Here, the contract registration form was a preprinted document copyrighted by GMC. Plaintiffs obviously had no input into the language or design of the document. Thus, defendants were in a superior position to plaintiffs regarding knowledge of the contents of the document, and plaintiffs should not be precluded from raising the issue of fraud.\nBecause we reverse the decision of the trial court granting Wolfs motion to dismiss for the reasons stated above, we need not address plaintiffs\u2019 contention that the disclosures in the registration form are in violation of the Magnuson-Moss Warranty Act (15 U.S.C. \u00a7 2301 et seq. (1994)) or Federal Trade Commission regulations.\nAccordingly, the judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded.\nAffirmed in part and reversed in part; cause remanded.\nGEIGER and BYRNE, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "Norman H. Lehrer and Maureen Flaherty, both of Lehrer, Flaherty & Canavan, of Wheaton, for appellant.", "Edward J. Lesniak and Jay S. Dobrutsky, both of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for appellee Harris Bank Barrington, N.A.", "Joseph M. Laraia and Michael T. Navigato, both of Laraia & Hubbard, P.C., of Wheaton, for appellee Dan Wolfe Pontiac-GMC Trucks.", "Thomas A. Carton and James R. Branit, both of Bullaro & Carton, Chartered, of Chicago, for appellee Judicial Recovery Systems, Inc.", "Robert Johnson, of Brothers & Thompson, P.C., of Chicago, for appellee General Motors Corporation." ], "corrections": "", "head_matter": "STEVEN L. OLDENDORF et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION et al., Defendants Appellees.\nSecond District\nNo. 2 \u2014 00\u20140343\nOpinion filed June 7, 2001.\nNorman H. Lehrer and Maureen Flaherty, both of Lehrer, Flaherty & Canavan, of Wheaton, for appellant.\nEdward J. Lesniak and Jay S. Dobrutsky, both of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for appellee Harris Bank Barrington, N.A.\nJoseph M. Laraia and Michael T. Navigato, both of Laraia & Hubbard, P.C., of Wheaton, for appellee Dan Wolfe Pontiac-GMC Trucks.\nThomas A. Carton and James R. Branit, both of Bullaro & Carton, Chartered, of Chicago, for appellee Judicial Recovery Systems, Inc.\nRobert Johnson, of Brothers & Thompson, P.C., of Chicago, for appellee General Motors Corporation." }, "file_name": "0825-01", "first_page_order": 843, "last_page_order": 850 }