No. 2--00--0343

__________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

STEVEN L. OLDENDORF and	)	Appeal from the Circuit Court

DANA M. OLDENDORF,	)	of Du Page County.

		  				  )

	Plaintiffs-Appellants,	  )                

	)

v.						  )  No. 99--L--332            

						  )	

GENERAL MOTORS CORPORATION; DAN	)	         

WOLF PONTIAC-GMC TRUCKS, INC.;	)	              

HARRIS BANK BARRINGTON, N.A.;    	)	                   

and JUDICIAL RECOVERY SYSTEMS,  )	

INC., a/k/a REI Towing,		  )	Honorable

						  )	Edward R. Duncan, Jr.,

	Defendants-Appellees.	  )	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:

	Plaintiffs, Steven and Dana Oldendorf, appeal the circuit

court's order granting the motion of defendant Dan Wolf Pontiac-GMC Trucks, Inc. (Wolf), to dismiss counts IV and V of plaintiffs'

amended complaint.  Plaintiffs also appeal the court’s 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’ 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’s judgment granting summary

judgment against plaintiffs as to counts VII and VIII of their amended complaint and reverse the court’s judgment dismissing

counts IV and V of the amended complaint.  The portion of our

opinion regarding counts VII and VIII will not be published.

	BACKGROUND

	Plaintiffs 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: 

		"SECURITY 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. 

		*** 

		ACCELERATION: 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.

* * * 

		5.	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."

	As required by section 433.2 of the Code of Federal

Regulations (FTC Rule) (16 C.F.R. §433.2 (1975)), the agreement

also contained the following language: 

		"NOTICE: 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."

	The financing agreement subsequently was assigned to Harris

Bank, which is identified as "First Lienholder" 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--101 et seq. (West 1998)).   

	At the time of purchase, plaintiffs paid $620 for "General

Motors Protection Plan Major Guard Coverage" (GMPP contract), which

was issued by defendant General Motors Corporation (GM). 

Plaintiffs also executed a form entitled "Contract Registration,"

which was completed at the time the car was purchased.  Our

analysis of the content of the registration form will be provided

below.

	In 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 "contracts," 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 "asserting their security

interest in the vehicle, pursuant to 810 ILCS 5/2-711, which [gave]

them a superior right to possession over any lien holder."

	On 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 Wolf’s motion,

the trial court dismissed counts IV and V pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (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 2-1005 of the Code (735 ILCS 5/2-1005 (West

1998)).  This appeal followed.

	ANALYSIS

	A section 2-615 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 novo. Carroll, 311 Ill. App. 3d at 684.

	Count 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 of misrepresentation of a material

fact by the defendant; (2) the defendant’s intention that the

plaintiff rely on the deception of misrepresentation; and (3) that

the deception or misrepresentation occurred in the course of

business.  Gragg v. Calandra, 297 Ill. App. 3d 639, 647 (1998).

	Plaintiffs alleged that, "at all times relevant," defendants

were engaged in trade or commerce and that the following

"representations and/or omissions" were made to plaintiffs:

		 "(a) Defendant represented in writing to Plaintiffs that

the duration of the GM Protection Plan ('GMPP') purchased by

Plaintiffs for $620.00 was 5 years/60,000 miles from the date

of purchase. (Exhibit 'B').

		10. The representations and/or omissions set forth above

were made with the intent that Plaintiffs rely on them.

		11. 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]

		(a) failed to disclose that coverage under the GMPP had

begun to run on 1/12/95, 2 years before Plaintiffs’ purchase;

		(b) failed to disclose that coverage under the GMPP would

expire in two years, rather than in 5 years, from the date of

purchase."

	The "Contract Registration" form, which was attached to the

amended complaint as Exhibit "B," identified the car purchased by

plaintiffs as a GM certified used vehicle. The form indicated that the car’s odometer mileage was 18,734, the purchase date was

December 27, 1997, and the car was originally placed "in service"

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

"time 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." On vehicles covered under the 12- month/12,000 mile

warranty, the "time and mileage limits begin on the vehicle

purchase date and at the mileage shown above." 

	Beneath 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:

"GM Certified Used Vehicles with remaining new vehicle limited warranty are eligible for the following plans:

		☒	60 Months/60,000 Miles

		☐	72 Months/75,000 Miles

		☐	72 Months/100,000 Miles." (Emphasis in

original.)			

 The reverse side of the form contained the following language:

"Purchase Provisions - Optional General Motors Protection Plan

Major Guard Coverage[:]

Mechanical coverage applies only to parts manufactured or

supplied by General Motors.  Coverage does not apply to Non-GM

parts, even if they meet manufacturer’s specifications.

  1.	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.

  	A.	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.

  	B.	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."  (Emphasis added.)

	Viewing 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 "60 Months/60,000 Miles." "[M]echanical

coverage" was to begin "on the purchase date of the optional

coverage"; however, two sentences later, the document provided that the "time and mileage limits" already commenced "on the same date

as the new vehicle warranty and at 0 miles." The form did not

clearly or accurately disclose the beginning date of coverage or

the actual period of coverage. Furthermore, while the "time and

mileage limits" pursuant to the standard limited warranties were

listed in the "Limited Warranty" 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.  

	We further observe that the so-called "60 Months/60,000 Miles"

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 "60 Month"

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.   

	We 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: "(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 plaintiff’s injury."  Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1039 (1992).

	Plaintiffs realleged the allegations of count IV and further

alleged:

		"14. 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.

		15. As a result of the misrepresentations and/or failures

to disclose set forth above, Plaintiffs have suffered various

damages and losses.

		16. Defendants’ conduct as set forth above constitutes

fraud against Plaintiffs.

		17. 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."

Plaintiffs 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.

	Defendants 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:

		"A 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."  Filosa, 18 Ill. App. 3d at 127. 

However, in determining whether an allegedly fraudulent provision

is "equally open to the knowledge of  both parties," 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’s 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.

	Because we reverse the decision of the trial court granting

Wolf’s motion to dismiss for the reasons stated above, we need not

address plaintiffs' contention that the disclosures in the

registration form are in violation of the Magnuson-Moss Warranty

Act (15 U.S.C. §2301 et seq. (1994)) or Federal Trade Commission regulations.

	[Nonpublishable material under Supreme Court Rule 23 omitted

here.] 

 determination of its right to repossess the car in order to avoid

a breach of the peace.  We rejected the same argument in Valentino, observing that section 9--503 provides that a secured party may

repossess collateral without judicial process if it can be done without a

breach of the peace.  Valentino, 317 Ill. App. 3d at 531, citing 810 ILCS 5/9--503.  We follow Valentino and hold that the fact that defendant's repossession was done without judicial process did not make it unlawful per se.     

	Plaintiffs also argue that, once they notified defendant that

they would object to defendant's attempts to repossess the car, defendant should have known that it could not resort to "self-

help" repossession without causing a breach of the peace.  We

addressed the same argument in Valentino.  See Valentino, 317 Ill. App. 3d at 531-32.  A breach of the peace is defined as conduct that invites or is likely to invite immediate loss of public order and tranquility.  Valentino, 317 Ill. App. 3d at 532, citing Chrysler Credit Corp. v. Koontz, 277 Ill. App. 3d 1078 (1996).  We hold, as  we did in Valentino, that because plaintiffs point to no evidence in the record that a breach of the peace in fact

occurred, despite  their anticipatory objection to repossession,

the repossession was not unlawful.  See Valentino, 317 Ill. App. 3d at 532.    

	In conclusion, we find that defendant Harris Bank possessed a

perfected security interest in the car that was superior to

plaintiffs' security interest.  This priority entitled defendant to repossess the car on plaintiffs' default without judicial

intervention if it could be done without breaching the peace.  As

there is no dispute that plaintiffs defaulted, and no evidence in

the record that defendant breached the peace in repossessing the car, we hold that neither Harris Bank nor its agent JRS converted

the car.  Accordingly, we hold that the trial court properly

granted summary judgment against plaintiffs on count VII of their

amended complaint alleging conversion against Harris Bank and JRS.  The lawfulness of the repossession also justified the trial

court's summary judgment against plaintiffs on count VIII of their

amended complaint alleging that Harris Bank and JRS violated the

Illinois Consumer Fraud and Deceptive Business Practices Act.

	[The preceding material is nonpublishable under Supreme Court Rule 23.]

	Accordingly, the judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is

remanded.  	

	Affirmed in part and reversed in part; cause remanded.

	GEIGER and BYRNE, JJ., concur.