## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Razor Capital v. Ant

aal , 2012 IL App (2d) 110904

Appellate Court Caption RAZOR CAPI TAL
, Plaintiff-Appellant, v. PAVI TERJ I T ANTAA L
, Def endant- Appellee

.

District & N o. Second District Docke t No. 2-11-0904

Filed J uly 11, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff’s unwritten-c ontrac t cause of action to collect a cre dit car d debt

was proper ly dismiss ed on the g round that p l ai n t iff failed to alleg e the
terms of the agree ment with the cardholder, that the terms applied to the

car dholder’s acc ount and that the car dholder rec eived the agree ment and
agreed t o t he terms by using the car d, but the cause was rema nded to allow plaintiff to file an amende d complaint containing those alleg ations.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 10-AR-2408; the Hon. B ruce R. Kelsey , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l J onathan M. Ba iley
, of L aw Office of Richar d Bodme r, of Chicag o, for appellant.

J ohn A. L ipinsky , of Coman & Ander son, P.C., of L isle, for a ppellee.

Panel PRES I DI NG J USTI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustices Hutchinson and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Plaintiff, Razor Capital, final transfe ree of a cre dit car d issuer, sued defe ndant, Paviterjit Antaal, to collect on an alleg ed cre dit car d debt. On August 10, 2011, the trial court g rante d with prejudice defe ndant’s motion to dismiss plain t i ff’s second amende d complaint. 735 I L CS 5/2-615 (West 2010). Plaintiff appea ls. For the following rea sons, we conclude that the complaint was proper ly dismiss ed but, never theless, we reve rse and rema nd so that plaintiff
may reple ad.

¶ 2 I . BA CKGROUND ¶ 3 A. Unwr itten Contract ¶ 4 As plaintiff’s complaints and the proce eding s below focuse d on the decision in Garber

v. Harris Trust & Savings Bank
, 104 I ll. App. 3d 675, 684 (1982), we briefly summarize the holding t h er ein. In Garber
, the plaintiffs, cre dit card holders, brought suit ag ainst the defe ndants, cre dit car d issuers, for brea ch of contra ct. Specifica lly
, the plaintiffs argued that the defe ndants had brea ched the provisions of their cardholder agree ments by modifying the
terms of the agree ments without consid er ation. In essenc e, the plaintiffs alleg ed that the

car dholder agree ments wer e binding contr acts betwee n the cre dit car d issuers and the holders
to extend cre dit on specific terms and that, without additional consideration, the agree ments could not be modified. The appell at e court reje cted the plaintiffs’ arg ument, stating, “we conclude that a contra ct was not formed at the time of the issuance of the cre dit car d; that a separate contract is create d each time the card is used according to the terms of the cardholder agreem ent at the time of suc h use ; that the car dholder a g ree ments wer e subject
to modification at will.” (Emphasis added.) Id. at 678. Thus, the plaintiffs wer e bound by the

m o d i fi cations to the car dholder agree ments wher e they used the cre dit car ds afte r t h e eff ective da te of the modifications. Id. at 685.

-2-¶ 5 B. Complaint and Motion to Dismis s

¶ 6 On J uly 20, 2010, plaintiff filed a verifie d complaint alleg ing that defe ndant had opene d a W ells Fa

rg o cre dit car d acc ount (the complaint specifie d the account num ber) and made char g es on the acc ount without making the monthly paym ents called for “under the Ag ree ment.” Plaintiff alleg ed that defe ndant had ref used to pay the balance due upon demand; specific ally
, the complaint alleg ed that defe ndant was in de fault on the acc ount in the amount of $12,783.12, plus $3,458.37 in interest, and that the amounts alleg ed wer e due
to plaintiff under either a brea ch-of -contra ct or an unjust-enrichme nt theory

. Plaintiff further alleg ed that i t was the final transfe ree of the acc ount and, “per [t he] attache d car dmember
agree ment,” was thereby

entitled to the out standing principal and interest, plus court costs and re asonable attorney

fee s. ¶ 7 Plaintiff attache d to the complaint an aff idavit from one of its ag ents, wher ein the ag ent attested that: (1) he rec eived information from the transfe ror of the debt and there by had knowledg e of the fac ts forming the basis of the complaint; (2) defe ndant had applied for the

cre dit car d acc ount either online or via telephone; (3) Wells Fa rg o made an offe r of cre dit to defe ndant in the form of a cre dit c ard with te rms and conditions g overning use of the car d; (4) defe ndant acc epted the cre dit offe r by using t h e credit car d to make purcha ses; (5) plaintiff purcha sed and is now the owner of the acc ount and, there fore
, is the party to whom defe ndant is liable; (6) wr itten demand wa s made upon de fenda nt; and (7) de fenda

nt owes plaintiff “the sum of $12,783.12 plus interest as of May 10, 2010 of $3,465.47 at 19.99% per annum, totaling $16,248.59.” ¶ 8 Also attache d to the complaint wer e t wo p age s of an undated “Wells Fa rg o Visa or Masterc ard Customer Agree ment and Disclosure Statement.” The section entitled “promise
to pay” provides t h at t h e ac count holder promises to pay the total amount of purcha ses or cash advanc es, as well as an y fi n an ce char g es and other fee s and charg es due under the
agree ment, and that, further
, to the extent per mitted by law, the acc ount holder promises to pay all costs and ex p enses, including rea sonable attorney fee s, that the lender incurs in enfor cingthe agree ment. ¶ 9 Pursuant to section 2-619.1 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-619.1 (West 2010)), defe ndant fil ed a combined motion to dismiss the complaint, based on standing and plaintiff’s failure to attach to the complaint a written agree ment as require d by section 2-606 o f t h e C o de (735 I L CS 5/2-606 (West 2010)). At a March 8, 2011, hear ing 1

on defe ndant’s motion, plaintiff repr esente d first that, in r esponse to defe ndant’s challeng e to p lain tiff’s standing
, it had provided defe nse counsel with assig nment documents ref lecting

a chain of title for defe ndant’s acc ount. Next
, rega rding defe ndant’s argument that the complaint failed beca

use there was no written agree ment attache d pursuant to section 2-606, plaintiff argued, “it’s a cre dit car d. Credit car ds are not written contra cts. It’s a non-written

Sec ti on 2- 606 pro vides : “I f a cl ai m or def ens e is fou nde d upon a wri tt en ins trum ent , a cop y 1 the re of, orof

so m uch of the same as is re le vant, must be a tt ach ed t o t he p le adi ng as a n ex hib it or

re ci te d ther ei n, unle ss the ple ade r att ach es to his or her ple adi ng an aff ida vit sta ti ng fa ct s showi ng tha t t he i nst rument is not ac ces si ble to hi m orher .” 7 35 I LCS 5/ 2- 606 (W est 201 0).

-3-contra ct. Garber v. Harris Trus t has clar ified that point of law. *** The actua l contra ct is

eac h time the car d is swept ***.” ¶ 10 The court acknow ledg ed t h e m er i t of plaintiff’s argument, noting for defe ndant that, beca use plaintiff was pursuing an un wr i t t en-contrac t theory as descr ibed in Garber
, “the attache d agree ment is not nece ssary from my perspe ctive in my courtroom. It’s very simple. I t’s a question of fac t and a question of proof. [P laintiff] may have a difficult time, but that’s [i ts] choice. ” The court stated that it was deny ing defe ndant’s motion to dismiss beca use plaintiff was f

ollowing Garber

. ¶ 11 There afte r, howeve r, the court noted for plaintif f t h at , t o s u cc ee d
, i t would need to establish eac h time defe ndant had used the car d, stating, “I don’t know how you’re g oing to do it, but you have a rig ht to do so.” In response to those comments, plaintiff reque sted leave
to amend the complaint to “make sure that it’s stated as clea rly as possible with ever

y cause of action as p o s s i ble.” The court g rante d plaintiff leave to file an amende d complaint. Def endant asked, “so is my motion g rante d? ” The court responde d, “your motion is g rante d.” The court enter ed an order g ranting defe ndant’s motion and g iving plaintiff leave to amend 2 the complaint.

¶ 12 C. Amended Complaint ¶ 13 On April 8
, 2 0 1 1
, p l ai n t i ff filed a four- count amende d complaint alleg ing brea ch of
contra ct, acc ount stated, promissory estoppel, and quantum meruit

. In the brea ch-of -contra ct count, plaintiff ag ain al l ege d t hat it was transfe ree of the acc ount, and it attache d to the complaint a purported chain of t itle. Fur ther, pla i n tiff aga in alleg ed that defe ndant opened

a Wells Fa

rg o cre dit car d acc ount and, without making the m o n t h ly pay ments called for under the agree ment, made char g es on the acc ount. The amend ed co mplaint attache d the aff idavit and the car dmember agree ment that had been attache d to the initial complaint, and it asserted that defe ndant owed pla intiff principal, intere st, and attorney fee s. ¶ 14 On April 13, 2011, the parties appea red for a status hear ing. Def endant repr esente d that she would “proba

bly” move to dismiss the amende d complaint. The court informed plaintiff that defe ndant’s motion would “be a g ood motion” and that the amende d complaint did not include a written agree ment and, while it might “g et” the quantum meruit count “in place ,” it had not p ro p er l y p l ea ded the other counts. Plaintiff reiter ated that it intended to follow 3 Ga r b er ; t he court responde d that the complaint was, never theless, not proper ly pleade d. Noting that plaintiff was not the first to raise this issue, the court stated: “if you’re g oing on the agree ment, you have to g o on the agree ment, but you can’ t take Garber and bootstrap the
agree ment ***. Garber say s you g et to use it and if you use it, you g et to p ay fo r i t , but it

We not e tha t, bec aus e pla int if f vo l unt ar il y di smisse d it s complai nt and
, in fa ct , the cou rt 2 had al re ady den ie d def

end ant ’s m oti on, the cou rt ’s comm ent s and ord er grant ing def end ant ’s m oti on ina ccu ra te ly re fl ectwhat tr ans pir ed a t t he h ear ing.

T he cou rt al so not ed to pla int if f tha t it tho ught “Count [V ] sta nds j ust to giv e you a hea ds 3 up,” but , as th er e was no c ount V in th e a m end ed c om pla int , th e c our t’ s r ef

er enc e i s un cl ear

.
-4-doesn’t say that if you use it, you’re adopting the agree ment.” The court noted that it assumed

that one of the parties would ultimately appea l its ruling and that it would be “happy to do that,” becaus e clarification might be neede d from the appellate court. It g rante d plaintiff another opportunity

to amend its complaint.

¶ 15 D. Second Ame nded Complaint ¶ 16 On May 11, 2011, plaintiff filed a two-count, second amende d complaint alleg ing brea ch of contra ct and quantum meruit

. The complaint ag ain alleg ed that defe ndant obtained a cre dit

car d acc ount, incurre d char g es, and, afte r demand, failed to pay

. Plaintiff soug ht the principal balanc e, attorney fee s, court costs, and prejudgment and postjudgment interest. Attache d to the complaint wer e the a ffidavit, cha in of title, and ca rdmember

agree ment. ¶ 17 That same day
, the parties appe ar ed b ef o re t h e court and submitt ed an agree d order setting a date for defe ndant to answe r or otherwise plead. Noting that it anticipated a motion from def endant, the c ourt set a date for a hear ing on the motion. ¶ 18 Def

endant moved to dismiss the second amende d complaint. On J u n e 2 2
, 2 0 1 1, the parties appea

red for the previously schedule d heari n g. T h e court instructed plaintiff as follows:
“You ar e [m ix ing] [proverbial] apples and orang es in trying to establish an agree ment by way o f t h e use of a credit car d. *** I don’t mind being appea led on this, so I ’m not offe nded if that’s the case p ar t i cular ly in this are a beca use I think we need some clar if i cation–but my position is that you can’ t bootstrap an agree ment–a g ener ic
agree ment with the use of the cre dit c ard unless you can show there ’s some connec tion b et we en the g ener ic agree ment that you wish me to adopt with the cre dit car d holder whether i t ’s by way of signature or whether it’s by way of acknow ledg ment that the
agree ment is out there
, not just simply the mailing of the g ener ic form ev er y three months, six months, or whateve r it takes. There has to be some specific acknow ledg ment that that’s the agree ment that is in place

. I don’t believe the use of the cre dit car d in and of i tself adopts or in any way acknow ledg es t hat t here ’s a written agr eeme nt out there

. I think under Velocity [ Inve stments, LLC v. Alston
, 397 I ll. App. 3d 296 (2010)], I think that clea rly does not fly

. Under the other case s, Garve r [ sic ] and Portfolio [ Acquisitions, LLC v. Feltman
, 391 I ll. App. 3d 642 (2009)], I don’t think either one of those [i s] the same thing. They both allow *** you can rec over on the use of the cre dit car d *** [but it’s] your choice
, either the agree ment or the use. *** You can’ t g et the use and then bootstrap the agree ment.” The c ourt g ave the parties time to complete briefingon the motion to dis miss. ¶ 19 The parties returne d to court on August 10, 2 0 1 1

. T h e co u rt asked plaintiff questions about Garber and other case s, specific ally asking plaintiff to explain how its complaint pleade d that there exis ted an unwritten contra ct. Ultimately
, the court provided plaintiff with

a choice to have the case dismiss ed with prejudice or to pay opposing counsel’s attorney fee s for filing multipl e m o tions to dismiss

. Plaintiff chose dismiss al. The court dismiss ed the second amende d complaint with pr ejudice, noting that a potential ca use of action probably lies in the case but
, despite “a mple opportunity ,” plaintiff f ailed to plead a

proper cause of

-5-action. The court noted that plaintiff is not attempting to rec over under a written agree ment

and that Velocity

does not apply ; under Garber , howeve r, “you cannot g ive attorne y ’s fe es *** beca use there is no agree ment to pay those. Second you cannot g et interest beca use there is no agree ment to pay

interest.” T he cour

t noted that, acc ordingto Portfolio , a credit car d

acc ount statement is not a writing that forms the basis of rec overy and, further
, the complaint must say that the cr edit car d was used a nd benef its were r ece ived. Plaintiff appea ls.

¶ 20 I I . ANALYSI S ¶ 21 A. Standing ¶ 22 Be fore addre ss i n g t h e m er i t s o f p l ai n t i ff’s appea l, we briefly addre ss the issue of plaintiff’s standing to bring suit ag ainst defe ndant. In her response brief on appea l, defe ndant
argues that, reg ardle ss of whether plaintiff’s complaints otherwise stated a cause of action,

we should aff

irm the court’s ruling beca use plaintiff lacks standing to bring the lawsuit. She
argues that the chain- of-title documents attache d to plaintiff’s amende d and second amende d complaints contain conflicting dates that sug g est an improper sale. In reply
, plaintiff disputes defe ndant’s cha

rac terization of the documents. ¶ 23 We reje ct defendant’s c halleng e to plaintiff’s st anding to bring suit to collect the debt. As defe ndant conce des, althoug h she raised the standing issue in he r motion to dismiss the initial complaint, she did not raise the issue in her mo t i o n t o d ismiss the second amende d complaint. Standing is an aff irmative defe nse that is forf eited if not pleade d. See In re A.W .J. , 197 I ll. 2d 492, 496 (2001) (a nd case s cited there in). ¶ 24 Moreove r, although defe ndant’s motion to dismiss the initia l co m p l ai n t ch al l en ged plaintiff’s standing , the trial cour t did not address that issue. At the hear ing on the motion, plaintiff prese nted defe ndant with documents ref lecting a chain o f title and defe ndant ackn o wl ed ged rec eipt of an assig nment. Then, afte r hear ing brief argument reg arding plaintiff’s intention to pursue an unwr itten-contra ct theory , the trial cour t allowed plaintiff
to voluntarily dismiss and amend the complaint. There afte r, plaintiff attache d the chain- oftitle documents to its subsequent complaints in acc ordanc e with section 2-606 of the Code. See Candice Co. v

. Ricke tts , 281 I ll. App. 3d 359, 362 (1996) (in addition to an underlying
contra ct, an assig nment ref lecting that the plaintiff has title to the claim is a document upon which the action is founded and must be attache d). Def endant did not, at arg

ument befor e the trial court or in her motion to dismiss the second amende d complaint, rea ssert her challeng e to standing
, nor did she raise any argument reg arding the ch a in

- o f

- ti tl e d o c u me nts. There fore
, the trial court did not consider defe ndant’s curr ent challeng e to the validity of the chain- oftitle d o cu ments, plaintiff had no opportunity to rebut or offe r evidenc e in response to defe ndant’s argument, and the rec ord reg arding standing was never develope d. As the fac tual basis for the standing issue being raised on appea l was not befor e the trial court, we will not consider it. See Schanowitz v. State Farm Mutual Automobile Insurance Co.
, 299 I ll. App. 3d 843, 848 (1998); see also Evans v. United Bank of I llinois
, 226 I ll. App. 3d 526, 530-31 (1992) (consider ing an argument the app el lee raised for the first time on appea l forf eited beca use the appellant did not have a chanc e to prese nt evidenc e in response and noting that “[e]mpl oying the waiver rule ag ainst an appellee is particula rly apt” when the appellant c o uld

-6-have introduced evidenc e to contest or ref ute the appellee ’s asser

tions made on appea l, had it been g iven an oppor

tunity to do so).

¶ 25 B. D ismiss al of Complaint with Prejudice ¶ 26 Turning to the merits of this appea l, plaintiff argues that the trial court err ed in dismissing the complaint with prejudice

. Specifica lly
, plai n t i ff asserts that the trial court incorre ctly deter mined that only the p ri n ci p al amount owed may be rec overe d under an unwrittencontra ct theory

. Plaintiff argues that the trial court err oneously held that the other reme dies

u n d er the terms and conditions of a cre dit car d agree ment, including attorney fee s and interest, may be rec overe d only when a written-c ontrac t, as opposed to an unwri tten-contra ct, theory is pursued. Fur

ther, plaintiff argues that the trial court improperly abandone d its role as an impar

tial arbiter a

nd soug ht out an appea l to obtain guidance in an ar ea of law that it believes needs clar ification. Plaintiff a sks tha t this court reinstate the c omplaint or allow it
to a mend the complaint and that we instruct the trial court that “a cause of action sounding under brea ch of an unwritten contra ct does not prohibit a plaintiff from rec overing pursuant to the terms and c onditions which were mailed to a consume r without a written c ontrac t.” ¶ 27 W e re v i ew de novo a trial court’s section 2-615 or section 2 -6 1 9 d i s m i s s al o f a complaint. Sheffler v. Commonwealth Edison Co.
, 2011 I L 110166, ¶¶ 23, 61. In ruling upon

a complaint’s leg al sufficie ncy , we take as true all proper ly pleade d fac ts and all rea sonable infere nces that may be drawn there from. Fitzgerald v. Chicago Titl e & Trust Co.
, 72 I ll. 2d 179, 187 (1978). A complaint is insufficient if it states mere conclusions of fac t or law, and it must, at a minimum
, alleg e fac ts sufficie nt to set forth the essential elements of a cause of action. Allstate Insurance Co. v. W innebago County Fai r Ass’n
, 131 I ll. App. 3d 225, 232 (1985)

. Ne v ertheless, a complaint should not be dismiss ed for failing to state a cause of action unless it c lear ly appea rs that no set of fac ts could be proved under the pleading s that would entitle the plaintiff to re lief. Fitzgerald , 72 I ll. 2d at 187. ¶ 28 We revie w for an abuse of discretion a trial court’s decision to dismiss a complaint with prejudice

. Ingold v. Ir w in
, 302 I ll. App. 3d 378, 383 (1998); Knight v. Van Matre Rehabilitation Center, LLC
, 404 I ll. App. 3d 214, 216 (2010). When doing so, we consider whether the trial cour

t, before dismiss ing w ith prejudice, took into ac count t he unique and particula r circ umstances of the case b ef ore it; if so, the court did not abuse its discretion. Ingold
, 302 I ll. App. 3d at 383. Her e, we conclude t h at t he trial court properly deter mined that plaintiff’s complaint failed to state a cause of action. Howeve r, bec ause the trial court stated that an appea l clarifying the pleading issue would be helpful, and acknow ledg ed that plainti ff l i k el y could s tate at least one cause of action ag ainst defe ndant, we conclude that

reve rsal is war

rante d. ¶ 29 Fr o m t h i s court’s revie w of the rec ord, it appea rs that t h er e we re t wo p ri m ar y misconceptions below: (1) plaintiff’s belief that, when pursuing collection of a cre dit car d debt on an unwritten-c ontrac t theory
, it need not plead the terms of the contra ct and that the
terms applied to defe ndant; and (2) the trial court’s appar ent misunderstanding as ref lected in its statement that “ Garber say s you g et to use it and if you use it, you g et to pay for it, but

-7-it doesn’t say that if you use it, you’re adoptingthe agree ment.” We addr ess ea ch in turn. ¶ 30 The elements of a brea ch-of -contra ct cause of action include the exis tence of a valid and enfor cea ble contra ct, per formanc e by the plaintiff, brea ch of the contra ct by the defe ndant, and resultant damag es or injury to the plaintiff. Gonzalzl es v. A me rican Express Credit Corp.
, 315 I ll. App. 3d 199, 206 (2000). Most critica lly here
, “[i] t is essential in pleading the exis tence of a valid contra ct to a lleg e fac ts suf ficient to indica

te the ter ms of the contra ct.” Allstate Insurance
, 131 I ll. App. 3d at 233. L ibera l construction cannot cure a b re ac h -ofcontra ct complaint that fails to plead those essential alleg ations. Id. There fore
, reg ardle ss of whether the purported contra ct is written, oral, or unwritten as described in Garber
, the afor ementioned plea ding r equire ments must be satisfied. ¶ 31 Her e, the se cond amende d complaint did not proper ly plead a brea ch-of -contra ct cause of action. In fac t, the compl aint did not even alleg e that there was a contra ct betwee n the parties, let alone specify that, eac h time defe ndant used the cre dit card, an unwritten contra ct was for med betwe en plaintiff (or W ells Fa rg o) and defe ndant. Nor did plaintiff allege that it (or Wells Fa

rg o) perf ormed under the contra ct. Fur ther, as the trial court emphasized in its ruling
, the second amende d complaint failed to alleg e the terms of the alleg ed contra ct; if the
two pag es of the gene ri c ( i.e.
, not identifying the parties) car dmember ag ree ment attache d to the complaint wer e supposed to refle ct the ter ms of the contra ct (whic h plaintiff did not clea rly plead)
, plaintiff failed to plead that the agree ment in any way applied to defe ndant’s

cre dit card a ccount. ¶ 32 To properly plead that the g eneric agr ee m en t at t ac h ed to the complaint applied to defe ndant’s accou n t wh en she used the car d, plaintiff must, at a minimum
, alleg e fac ts ref lecting that those terms wer e commu n icated to defe ndant, via mail to defe ndant’s most

re ce nt billing addre ss or in another simil ar manner by which it would be rea son ab l e t o presume that defen d an t re ceive d them, and that defe ndant acc epted those terms by subsequently using the car d. As explained in Garber
, modified terms of an agree ment, once

com m u n i ca t ed to the car dholder, are deeme d acc epted when the car d is used afte r the modifications. Garber
, 104 I ll. App. 3d at 678, 685; see also Asset Acc eptance
, LLC v. Tyler
, 2012 I L App (1st) 093559, ¶ 47 (“Consistent with the treatment of eac h cre dit car d purcha se

as a separ ate offer and acce ptance , modificatio n s t o cre dit car d terms are bi nding betwee n the par ties when, a fter notice of the modifications, the cardholde r uses his ca rd.”)

. ¶ 33 A complaint alleg ing brea ch of an unwritten contra ct is no t , b y v i rt u e of pleadingor attaching the terms of the alleg ed agree ment, conver ted into one claiming brea ch of a written
cont ra ct s u ch that, as in Velocity
, the absenc e of an attache d written contra ct (or aff idavit

ex p l ai n ing the absenc e of same) is fata l to the claim. See Velocity
, 397 I ll. App. 3d at 2 9 8 (complaint dismiss ed wher e it speci fi cally alleg ed that the defe ndant was indebted to the plaintiff “by virtue o f a cer tain agree ment enter ed into by defe ndant on or about ***; said
agree ment is attache d here to and made a part here of”; howeve r, no agree ment was attache d ref lecting the written instrument upon whi ch the claim was founded, nor was there an aff idavit explaining that the document was inacc essible). In fac t, here
, the court expli citly acknow ledg ed that Velocity was inapplicable beca use plaintiff was not alleg ing brea ch of a

-8-written contra ct. Neve rtheless, to pursue even an unwritten-c ontrac t claim, a plaintiff must 4 both plead or attach the terms of the agree ment alleg edly brea ched and tie those terms to the defe ndant. Fur

ther, in the a

bsence of alleg ations or af fidavits explaining when and how an attache d agre ement was communicated to the defe ndant and showing that the defendant used the card thereafter
, there by acc epting the agr ee m ent’s terms, a plaintiff cannot rec over pursuant to those terms. ¶ 34 There fore
, here
, plaintiff’s unwritten-c ontrac t cause of action was not proper ly pleade d. Whil e it might very well be true that the g ener ic agree ment attache d to plaintiff’s complaint

acc urate ly refl ec t s the terms of their unwritten contra ct and that defe ndant acc epted those
terms when she used the c ard afte r the agree ment was communicated to he r, the complaint includes no alleg ations or documents ref lecting as such. Indeed, plaintiff wants this court to instruct the trial court that “a cause of action sounding under brea ch of an unwritten contra ct does not prohibit a plaintiff from rec overing pursuant to the terms and conditions which were mailed to a consume r without a written contra ct (empha sis added) ”; howeve r, it did not plead
t hat the terms attache d to the complaint wer e even mailed to defe ndant (let alo n e t o defe ndant’s last known billing addre ss) or that she used the car d there afte r. To plead the

cause of action, there must be alleg ations or documents ref lecting the terms of the agree ment betwee n defe ndant and plaintiff (or plaintiff’s prede cessor), th at t h e t erms perta ined to defe ndant’s acc ount, and that she rec eived or was mailed the agree ment, and that she agree d
to those terms when she used the car d there afte r. Asset Acc eptance , 2012 I L App (1st) 093559, ¶ 48. We further note that plaintiff must plead that the terms alleg ed are those under which it seeks to rec over. For example, it is theore tically possible, under Garber
, that sever al versions of ter m s ap plied to defe ndant’s acc ount, if the terms wer e modified betwee n defe ndant’s cre dit car d transac tions. I f so, and to the extent that plaintiff seeks to rec over for char g es defe ndant incurre d under differ ent versions o f t erms of the unwritten agree ment, those terms, the communication of those terms to defe ndant, and defe ndant’s subsequent use of the car d will need to be separ ately pleade d for eac h version of terms under which plaintiff seeks to re cover

. ¶ 35 We wish to briefly ad d ress the t rial court’s statement t hat, according to Garber
, if one

uses a cre dit car d, he or she m ust pay for it, but use does n o t m ea n t h at t he agr eeme nt has been adopted. I n fac t, assuming that the t erms or mo d i fica tions of an agree ment wer e first communicated to a cre dit c ard user, that is exactly what Garber said. Garber
, 104 I ll. App.

We not e tha t the cou rt re fe re nce d the Port fol io dec is ion in hol din g tha t pla int if f’ s complai nt 4 fa il ed to st at e a cl ai m

. In Port fol io
, however
, the cou rt was re viewin g the doc um ent s at ta che d to the complai nt, inc lud ing cr edi t car d st at ements, for purpos es of ass ess ing whet her the re exi st ed a wri tt en

con tr act bet ween the par ti es suc h tha t a 10- year li m it at ion s per iod app li ed to the cau se of act ion

. T he

cou rt con cl ude d tha t none of the at ta chments re fl ect ed a wri tt en con tr act and tha t, the re for e, the pla int if f, whic h was see king to col le ct on a def aul te d cr edi t car d deb t, cou ld pur sue onl y a cl ai m for bre ach of an unwr it te n con tr act , whic h was sub j ect to a 5- year st atute of li m it at ion s. Port fol io
, 391 I ll

. App. 3 d at651

- 55. He re , not onl y did pl ai nti ff not at ta ch d ef

end ant ’s cr edi t car d st at ements to the complai nt, it did not see k to est abl is h a wri tt en con tr act for purpos es of ext end ing the st atute of li m it at ion s. T her ef

ore , Port fol io is not par ti cul ar ly re le vant he re

.

-9-3d at 678, 685. To the e x tent that the trial cour t sugg ested that re cover

y of attorne y

fee s or any thing other than the principal balanc e is prec luded unless the plaintiff attache s a written
agree ment ref

lecting the entire agree ment betwee n the parties, we disagree

. To clar ify
, even

an unwritten contra ct has terms. Per Garber
, eac h time a cre dit car d is used, a new contra ct exis ts betwee n the parties acc ording to the terms “in eff ect” ( i.e.
, having been communicated
to the defe ndant in a rea sonable manner) at the time of the use. Id. Those terms might include provisions reg arding attorney fe es or interest. To rec over, howeve r, the plaintiff needs to alleg e what the terms wer e at the time of eac h use, that those ter ms were communicated to the def endant, a nd that the def

endant ther eaf

ter a cce pted those terms by using the car d. ¶ 36 We agree with the t rial court that plai n t iff’s complaint failed to proper ly plead a cause of action. We do not, howeve r, find that d i s m i s s al with prejudice is a just result. Whil e dismiss al with prejudice was the vehi cl e by which thi s appea l could t ake place, the rec ord ref lects that the trial court, in its laudable attempts to g uide plaintiff, potentially misguided it. Fur ther, the t ri al court stated that, in its view, the pleading require ments for unwrittencontra ct claim s wer e unclear and guidance from thi s court would be helpful. Acc ording ly
, wher e even the trial court appea rs to have been uncer

tain as to the pleading require ments, we do not be lieve that prec luding plaintiff from pursuing its c laim is a just result. Finally , as a complaint g ener ally should not be di s m i s s ed for failing to state a cause of action unless it clea rly appea rs that no set of fac ts could be proved under the pleading s that would entitle the plaintiff to relief (

Allstate Insurance
, 131 I ll. App. 3d at 232), and the court here stated that

a cause of action likely exis ted, we reve rse and rema nd for plaintiff to f

ile, if it so chooses, an amended complaint consistent with this decis i o n

. S ee al so Velocity
, 397 I ll. App. 3d at 300 (holding that improper pleading was grounds for dismiss al wi t h o u t prejudice and

rema nding to tria l court).

¶ 37 I I I . CONCLUSI ON ¶ 38 For the fore g oing rea sons, t h e j u d gm en t o f t h e ci rc u i t court of Du Pag e County is

reve rsed a

nd the ca use is rema

nded.

¶ 39 Reverse d and re manded.

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