Count XVII seeks declaratory judgment; and Count XVIII alieges
violation of the Fair Credit Reporting Act.

The Defendants PCNA, PFS, PLL, Lunsden and Ray have moved to
dismiss Counts I-III, VI, VIII-xV, and XVITT. Voelker concedes that
Counts X and XIV should be dismissed but contests the motion on the
other counts. The Defendant, Copans Motors Ine., has filed a
separate motion to dismiss Counts I, II, IV, VIII, IX, xX, XI, XIII
and XIV.

DISCUSSION
Counts I and II

Counts I and II are brought the Illinois ucc, 810 ILCS 5$/1-101,
et seq. and the Illinois Lemon Law, 6815 ILCS 380/1 et seq.
respectively, against PLNA, Porsche and Copans. The motion is based
on defendants’ argument that both sLlatutes limit coverage to “express
warrant[ies].” The complaint instead shows that the defendants gave

only a “Limited Warranty” of “repair or replace. The [llinois
Appellate Court for the First District has held that such a limited
warranty “does not fit the definition of warranty under the
Commercial Code [and the Illinois Lemon Law]. ... It does not
‘warrant’ the quality of the vehicle or the performance.” The
promise to repair is an obligation under the lease agreement and
makes no promise as to the quality of the good leased. Cosman v.
Ford Motor Co., 220 I111.Dec. 790, 795 (1996). Voelker argues that a
later First District case, Hasek v. DaimlerChrysler Corp., 253

fll.Dec. 504, 515 (2001), appears “implicitly to reject” the holding

—4-



a remedy against PCNA under the Illinois New Vehicle Buyer Protection
Act. If Voelker is right, any time an attorney responds to an
opponent he could be subject to a possible malpractice claim.
Count XI is dismissed.
Count XII
This count alleges that PFS and Ray interfered with Voelker’s
warranty rights and thus constituted tortious interference with
contract. The contract allegedly interfered with is the warranty
obligations in the lease agreement. However, the repairs were
occasioned by an automobile accident, not defective parts.
Consequently the contract allegedly interfered with does not apply.
Count XII is dismissed.
Count XIII
Defendants withdraw their motion to dismiss Count XIII until
such Lime as Porsche, the manufacturer of the vehicle in question, is
served with a Summons and before the court.
Count XV
Voelker alleges that Copans and PFS violated the lease agreement
by failing to lease a vehicle that could be register and driven in
Illinois. However the vehicle was registered and driven in Illinois,
apparently legally. Accordingly, Count XV is dismissed.
Count XVIII
Voelker attempts to allege a violation of the Fair Credit
Reporting Act. However, the act is only triggered where a consumer

reporting agency notifies the creditor that the debtor disputes the

7



that the same could be sold at auction due to overdue lease payments.
PFS took the position that it had no duty to repair because the
damage was due to an accident and not due to defective parts.
Subsequently, Voelker’s Diners Club Card was cancelled because PFS
reported to credit agencies that Voelker was more than ninety days
delinquent in his PFS account.

As a result of the above, Voelker filed an eighteen-count
complaint in the Circuit Court of Cook County which was timely
removed to this court, based on this court's original jurisdiction of
claims made under the Magnuson-Moss Warranty Act, 15 U.S.C, § 2310.8
et seq.; the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq.;
and the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
Count I is based on breach of express warranty; Count II is for
violation of the Lllinois Lemon law; Count TI1 alleges spoliation of
evidence; Counts IV and V are based on the Iilinois Consumer Fraud
Act; Count VI alleges fraudulent inducement; Count VII alleges

fraudulent misrepresentations; Counts VIII and 1X allege violation of

Magnuson—Mo for breach of express warranty and implied warranty of
merchantability; Count X alleges revocation of acceptance in
violation of Illinois law; Count XJ] violation of Illinois Consumer
Fraud Act; Count XII alleges tortious interference with contract;

Count XIII is a strict products liability claim; Count XIV alleges

violation of the federal Truth in Lending Act; Count XV alleges

breach of the lease agreement; Count XVI is a state negligence claim;



of Cosman. However the Hasek decision does not mention Cosman and
its holding is purely dicta since the plaintiff Hasek failed to prove
a violation of the replace or repair warranty in question. Moreover,
the court held that the plaintiff had to prove a defect and a failure
to repair as part of its case and not merely a defect. The court
will follow Cosman and, to the extent that the two decisions are
inconsistent, predicts that the Illinois Supreme Court will follow
Cosman. Since the Illinois Lemon law adopts the definition of
express warranty from the UCC, both Counts I and [I] are dismissed.
Count III

Count III alleges a claim for spoliation of evidence due to the
anticipated sale of the Porsche in question. Defendants move to
dismiss on the ground that the complaint does not allege that the
vehicle has in fact been sold. Voelker in his response alleges that

defendant was threatening to sell the vehicle and may have done so on

December 12, 2002. A party cannot amend a complaint by a resp ve
brief. As the complaint stands, there is no allegation that evidence
has been spoiled. Count III is dismissed.
Count VI
In this count Voelker purports to state a claim for fraudulent

inducement based on website statements made by PCNA and Copans

concerning safety and the efficacy of the side-impact protection

system of the Porsche 911. The first statement is not demonstrably
false. Presumably Porsche is committed to safety. A statement to

that effect, at most, would be a statement of opinion or puffing and

—- 5 +



debt. Dornhecker v. Ameritech Corp., 99 F.Supp. 2d 918, 928
(N.E.ILL. 2000). ‘The complaint fails to allege that the act was so
triggered. Count XVIII is dismissed.
CONCLUSION

For the reasons set forth above, the Defendants PCNA, PFS, PLL,
Lunsden and Ray’s Motion to Dismiss is granted. Counts I, II, III,
VI, VIII, IX, X, XI, XII, XIV, XV, and XVIII are dismissed.

Detendant Copans Motion to Dismiss is also granted. Counts I,
Il, VI, VIII, IX, X, XT and XIV are dismissed.

Since the basis tor this court’s jurisdiction was the claims
under the Magnuson-Moss, the Truth in Lending, and the Fair Credit

Reporting Acts, which have now been dismissed, the court relinquishes

jurisdiction over this matter and repands the cape to the C
Court of Cook County.

IT IS SO ORDERED.

—>

Harry 0. Déinetwéber, Judge
United States District Court



Miu

United States District Court, Northern District of Tlinois

Nj Name of Assigned dudge Harty D. Leinenweber Sitting Judge if Other
Sp (or Magistrate diedge . thin Assigaed Judge
\ | CASE NUMBER 02 C 4798 DATE 2/7/2003
\
CASE Daniel J. Voelker vs. Porsche Cars North America Ine. et
TITLE
Tin the fhllowing box (a) indicate tne party filing Vie molion. eg. plainly. detendant, 3rd party plainilt and {b) state briefly the nature
MOTION: ofthe motion being presented. |
DOCKET ENTRY:
a) i Filed motion of | use listing in “Motion” box above.]
im) Brief in support of motion duc
u Answer brief to motion due. Reply lo answer briefdue
(4) in Ruling/Hearing on set for at
(3) n Status hearingfheld/continued to] [set for’re-set for]on set for ial
(6) Oo Pretrial conferencefheld/continued to] [sel for/re-set for] on set for at
i) Mm Trial|set forsre-set for] on at
(8) a [Benchélury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to |
Orrerdmy tl Local Rule dt. OFRCPA(a) OO FRCPS 1 a)(2).
clo) a |Qlier docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendants PONA, PES, PLL,
Lundsden and Ray's Motion to Disniiss is granted. Counts LH, 1H VE, VII IX, X, Xf, XTh XIV, XV and XVII are dismissed.
Defendant Copans Motion to Dismiss is also granted. Courts [, Hl, VI. VIEL LX. X, Xb and XEV are slismissed. The Court
relinquishes jurisdiction over this matter and remands the cuse to the Circuil Court of Cook County
(11) a [Por further detail see order utlached to the original minute order.)
Nov notices rsquited, advised iin open eourt Document
No nutions tequiral Number
univer ef woes
Nowiaes mailed by judge's stall 1 0 2003
Notified counsel by tel FEB ante decketet
Y | Ducketing tw mail notice ‘ j
| Mail AQ 450 fun Leres: req fo dosh Bua
Copy ta jdgesnagisione judge. —_
eprrlionny eae] " nN
WAP depuly's. I
ininiais +
Datuftime receryes in
contrat Clerk's Olfice snare dey avin



resents an anticipated future course of conduct. LaScola v, U.S.
Sprint Communications, 946 F.2d 559, 568 (7th Cir. 1991). As such,

it cannot be a basis for fraudulent inducement. The second statement

is also true: the car was equipped with side air-bags, T fact
that a certain type of accident might not inflate the air bags does
not render the statement false. Presumably any vehicle high enough
off the ground to pass over the top of the Porsche would not cause
the bags to be inflated. Count VI is dismissed.
Counts VIII and Ix

These two counts are breach of warranty claims brought under the
Magnuson-Moss Act. However, the Act only applies to purchased goods
and not to leased products. DiCintio v. DaimlerChrysler Corp., 768
N.E.2d 1121, 1124 (N.Y. 2002); Diamond v. Porsche Cars North America,

ne., 2002 WL 31155064 (N.D. Ill. Sept. 26, 2002). Counts VIII and

IX are dismissed.
Count XI

This count attempts to allege a consumer fraud claim against
PCNA and Lumsden based on letters Lumsden wrote Voelker which he
interprets as giving him “legal advice” that was incorrect and
moreover constitutes unauthorized practice of law. How the letters
Lumsden wrote could constitute legal advice is beyond the court’s
imagination. No one would ever expect to receive legal advice from
an adversary. It is clear that an adversary relationship existed
between PCNA and Voelker at the time of the letter since she was

responding to Voelker’s letter where he expressed an intent to seek

-6-



IN THE UNITED STATES DISTRICT COURT F | L E
FOR THE NORTHERN DISTRICT OF ILLINOIS D
EASTERN DIVISION

FEB ~ 7 2003
DANIEL J, VOELKER, JUDGE

Plaintiff, COURT Junge
Case No. 02 C 4798

Hon. Harry D. Leinenweber

*ETED

Defendants. ERE 8 2003

PORSCHE CARS NORTH AMERICA,
INC., et al., ee

MEMORANDUM OPINION _AND ORDER

On September 20, 2001, the plaintiff, Daniel J. Voelker
(“Voelker”) was involved in a motor vehicle accident with defendant,
Walter Dreikosen (“Dreikosen”). At the time, Voelker was driving a
2001 Porsche 911 Turbo coupe automobile. Dreikosen was driving a
Chevrolet 1500, a so-called Sports Utility Vehicle (“SUV”)
Dreikosen ran a stop sign and his vehicle impacted with the driver’s
side of the Porsche at a speed of approximately 25 miles per hour.
The impact caused approximately $25,000 damage to the Porsche and
personal injuries to Voelker, Although the Porsche was equipped with
driver's side air bags at the time of the accident they failed to
inflate because the sensor that causes the inflation was located too
low to the ground on the Porsche to make contact with a large vehicle
such as an SUV.

The Porsche automobile was manufactured in Germany by Dr. Ing.
H.C.F. Porsche AG and imported into the United States by Porsche Cars
North America, Inc. (“PCNA”). Porsche Financial Services (“PFS”) is

a financing arm of PCNA and Porsche Leasing, Utd. (“PLL”), a

ni C


subsidiary of PFS, and is the owner of the Porsche automobile in
question. Copans Motors, Inc., d/b/a Champion Motors (“Copans”), is
an authorized Porsche dealer that leased the subject Porsche to
Voelker. The lease agreement contained a limited warranty to replace
or repair any defective parts. Subsequently, Copans assigned the
lease to PFS. Chuck James (“James”), District Service Manager; Brent
Feely (“Feely”), District Parts Manager; and G.M. Lumsden (“Lumsden”)
are all omployees of PCNA. James Ray (“Rey”) is the director of
credit operations and customer service of PFS.

After the accident, the Porsche was tewed to Europa Imports for
repairs. Voclker subsequently ordered replacement parts needed to
repair the vehicle from the Porsche Exchange, an authorized Porsche
dealer. Due to delay in obtaining replacement parts, the vehicle
remained in the repair shop for almost two months. Because of the
delay, Voelker notified PFS that he would no longer make any further
lease payments. He also insisted that he receive a certification
that the side air bags were operable. Subsequently, PCNA agreed to
make certain of the lease payments to PFS while the Porsche was
inoperable. Ray, however, notified Voelker that PFS would refuse to
accept payments from PCNA because to do so would violate unidentified
banking Laws. However, PCNA then made these payments directly Lo
Voelker. Six months after the accident, the Porsche still was not
repaired, apparently because replacement parts were in very short

supply, and Voelker was not making his lease payments. At this time

attorneys for PFS made demand on Voelker to surrender the vehicle so