Metro have been unsuccessful. Ford has asked that we dismiss this count as to it because it
should not be held liable for the actions of Metro.

According to Alvizo, Ford’s liability for the actions of Metro is based upon the FTC
holder rule, as it is set forth in a separate provision of the Vehicle Retail Installment Contract.
That provision states in full that:

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL

CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE

SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH

THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL

NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

Ford argues that it should not be held liable under this provision on the ground that the FTC
holder rule does not apply to the conversion of Alviso’s property because that property was not
obtained pursuant to the vehicle sales contract. Alvizo, on the other hand, points to the terms
of the contract itself that specifically mention $80.00 paid “To Public Officials ... for license, title
& registration fees.” Complaint, Ex. B. As such, according to Alvizo, Ford would be liable for
conversion under the FTC holder provision because the license plates were obtained pursuant
to the sales contract.

Itis clear that the license plate was obtained pursuant to the vehicle sales contract.
The contract's terms specifically mention money paid in consideration for obtaining the license
plates on Alvizo’s behalf. However, the vehicle “stickers” in question were not obtained
pursuant to the contract.’ As such, Ford could not be held liable for Metro’s conversion of the
stickers (if such conversion were proved). Count VII is dismissed as to Ford to the extent it
alleges Ford's liability for conversion of the vehicle stickers, but the allegation of conversion of

the license plates will stand.

CONCLUSION

‘Alvizo has not described what kind of “stickers” are on the car. We assume, for the purpose of this
ruling, that the “stickers” mentioned by Alvizo are the sort not related to his license plate or vehicle
registration (e.g. parking permit, etc.). If, however, the sticker he refers to is the date sticker placed on the
license plate to signify current vehicle registration, then that sticker is deemed part of the license plate for
the purpose of this ruling.


of the Illinois Appellate Court in Midstate Siding & Window Co., Inc. v. Rogers, 309
lILApp.3d 610 (lil. App. Ct. 1999). While the Illinois Supreme Court has recently granted leave
to appeal the idstate decision and has heard oral arguments on the case, it has not yet
issued its decision. As such, the Illinois Supreme Court has yet to provide authoritative
guidance on this issue.

A federal court applying state law must attempt to resolve the issues as if it were the
highest court of the state that provides the state law. Stephan v. Rocky Mountain
Chocolate Factory, Inc., 129 F.3d 414, 416-17 (7th Cir. 1997). Moreover, decisions by
intermediate state appellate courts are not necessarily binding or authoritative in federal court.
Knoblauch v. DEF Express Corp., 86 F.3d 684, 687 (7th Cir. 1996).

Upon our review of the statute and the Midstate opinion, we agree with the decision
of two other judges in this district that, without guidance from the Illinois Supreme Court, the
most prudent course of action is to deny a motion to dismiss based upon Metro's interpretation
of the statute. See Harris v. River View Ford, Inc., No.00 C8129, 2001 WL 1191188
(N.D.1il. Oct. 4, 2001) (Darrah, J.); Harris v. Castle Motor Sales, Inc., No. 00 C 5455,
2001 WL 477241 (N.D.IIL May 7, 2001) (Hibbler, J.). But see Fogle v. William
Chevrolet/Geo, Inc., No. 99 C 5860, 2000 WL 1129983 (N.D.ill. Aug. 9, 2001) (Holderman,
J.). The Illinois Supreme Court's eventual decision on this issue could be dispositive. It would
thus be imprudent to dismiss this count when clear guidance on the issue is imminent. Should
the Illinois Supreme Court decide Midstatein a way that supports Metro’s position, Metro
could revisit this issue on Summary judgment. Accordingly, at this time we deny Metro’s
motion to dismiss count IV.

Count VII - Conversion

In count VII of his complaint, Alvizo alleges that Metro and Ford have converted his

personal property - specifically, the vehicle license plates and stickers on the Ford Taurus now

in Metro’s possession. Repeated attempts by Alvizo to obtain the plates and stickers from


In sum, Metro’s motion to dismiss count IV is denied in its entirety. Ford’s motion to
dismiss count VII, however, is partially granted to the extent it frees Ford of potential liability for

conversion of Alvizo’s “vehicle stickers.”

It is so ordered.

MoS

MARVIN E. ASPEN
United States District Judge



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Ni f ed Jud; i Sitting Judge if Oth
eye Magistrate Judge Marvin Aspen than Assigned Judge
CASE NUMBER 01 C 2395 DATE 12/28/2001
CASE Maurilio Alvizo vs. Metro Ford Sales & Service,etal
TITLE

[in the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

@M a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due.

(4) Q Ruling/Hearingon___—__setfor__at_

(5) | Status hearing set for 2/14/2002 at 10:30 A.M..

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__setfor_—— ss at__
(7) Q Trial[set for/re-set for]on at.

(8) a [Bench/Jury trial] [Hearing] held/continued tot

(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

DOFRCP4(m) CGeneral Rule21 CIFRCP41(a)(1) CFRCP41(a)(2).

(10) WM [Other docket entry] Enter Memorandum Opinion and Order: Metro’s motion to dismiss Count IV
(15-1) is denied in its entirety. Ford’s motion to dismiss Count VI, (12-1 & 16-1) is partially granted to

the extent it frees Ford of potential liability of conversion of Alvizo’s “vehicle stickers.”

dl) gf [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

+
No notices required.

Y | Noticesmailed’by jdpige’s staff.

Notified counsel by telephone.

Docketing to mail notices.
°

Mail AO 450 form,

Copy to judge/magistrate judge.

courtroom 1 ge
GL deputy’s
initials - —
je Date/time received in

‘" stritral Clerk's Office.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAURILIO ALVIZO,
Plaintiff,

v.

No. 01 C 2395
METRO FORD SALES & SERVICE, ING@.,
and FORD MOTOR CREDIT COMPANY,

)

Defendants. ) pater!

JAN 03 2002.
MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, Chief Judge:

Plaintiff Maurilio Alvizo has brought a nine count complaint against Metro Ford Sal
Service, Inc. (“Metro”) and Ford Motor Credit Company (“Ford”) arising from Alvizo’s Oct
4, 2000 purchase of an apparently defective 1998 Ford Taurus. Defendant's Metro and |
have brought motions to dismiss count IV and count VII, respectively.

BACKGROUND

The following facts are taken from Alvizo’s complaint and are assumed to be true for
the purpose of deciding the motions. On October 4, 2000, Alvizo purchased a used 1998 Ford
Taurus from Metro. At the time of purchase, Metro informed Alvizo that the vehicle was in
good mechanical condition and had no mechanical problems or defects. To purchase the car,

Alvizo consummated a Vehicle Retail Instalment Contract which provided for a down payment
of $1000 plus 60 monthly payments of $323.95. The total amount financed was $14,985.
Over the next four months, Alvizo was forced to bring the vehicle back to Metro four times for
various mechanical repairs. Apparently disgusted with the condition of the vehicle, Alvizo
returned the Taurus to Metro on March 1, 2000 and revoked his acceptance of the vehicle
because it was defective and non-conforming. Alvizo also rescinded the transaction on
grounds of fraudulent inducement and language fraud. The car is currently in the possession vo
LO

a

of Metro.


Of Alvizo’s nine count complaint, only two are at issue here. Count IV alleges a
violation of the Illinois Credit Services Organization Act in that Metro and Ford are liable to
Alvizo for their failure to comply with the various requirements of the Act. Metro has requested
that we dismiss count IV as it pertains to Metro. Count Vil is a claim of conversion against
Metro and Ford in that Metro has refused to return the license plates and vehicle stickers
attached to the vehicle now in Metro’s possession. Ford has requested that we dismiss count
VII as it pertains to Ford.

ANALYSIS

The purpose of a motion to dismiss under Rule 12(b)(6) is to decide the adequacy of the
complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990). In considering a motion to dismiss, we must accept all well-pleaded
allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor.
MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir.
1995), affd161 F.3d 443 (7th Cir. 1998), cert. denied, 528 U.S. 810 (1999). Therefore, a
complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson,
355 U.S. 41, 45-46 (1957).

Federal question jurisdiction is proper as this case arises under the Federal Odometer
Act and the Truth in Lending Act. Supplemental jurisdiction over the state law counts at issue
in this opinion is proper under 28 U.S.C. § 1367.

Count IV - Credit Services Organization Act

In count IV of his complaint, Alvizo alleges that Metro violated the Credit Services
Organization Act (“CSOA”), 815 ILCS 605/1 et seq. In its motion to dismiss, Metro argues
that a car dealership is not a “credit service organization” as defined by the Act, and therefore
Metro should not be held liable for any alleged violations. Alvizo argues that car dealerships

should be considered “credit service organizations” under the CSOA and relies on the authority