VELOCITY INVESTMENTS, LLC v. ALSTON No. 2-08-0746.
922 N.E.2d 538 (2010)
VELOCITY INVESTMENTS, LLC, Plaintiff-Appellee, v. Gregory ALSTON, Defendant-Appellant.
Appellate Court of Illinois, Second District.
January 15, 2010.
Jerome E. Riley, Freedman, Anselmo, Lindberg & Rappe, LLC, Naperville, for Appellant.
Justice JORGENSEN delivered the opinion of the court:
Plaintiff, Velocity Investments, LLC, filed suit against defendant, Gregory Alston, based on defendant's default on the terms of his credit card agreement. Defendant originally entered into a credit card agreement with Household Bank, whose interest in the debt was subsequently sold to plaintiff. The trial court entered judgment in favor of plaintiff. Defendant timely appeals. On appeal, defendant argues, inter alia, that plaintiff erred by failing to produce the original credit card contract, showing that defendant agreed to its terms and conditions. We agree with this contention and, accordingly, vacate and remand for further proceedings.
In the trial court, defendant filed a motion to dismiss, alleging, inter alia, that "plaintiff has no valid documentation showing the amount owed, or the existence of the actual debt owed." On February 28, 2008, the trial court denied defendant's motion to dismiss. We do not have a transcript of the February 28 hearing, but based on the common-law record, defendant has preserved the issue for appeal. See Exchange National Bank v. Sampson,
Defendant's argument, however, is undeveloped and without any citation to authority supporting his position. This court is "`entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented ([210 Ill. 2d R. 341(h)(7)]), and it is not a repository into which an appellant may foist the burden of argument and research.'" Stenstrom Petroleum Services Group, Inc. v. Mesch, 375 Ill.App.3d 1077, 1098, 314 Ill.Dec. 594,
Section 2-606 of the Code of Civil Procedure provides that if a claim "is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an
Here, the written instrument upon which plaintiff's claim was founded was defendant's original credit card contract with Household Bank, which contract plaintiff then purchased from the bank. See, e.g., Parkis v. Arrow Financial Services, LLS [sic], No. 07-C-410, slip op. at 4, 2008 WL 94798 (N.D.Ill. January 8, 2008) (the defendant, a company engaged in the business of buying bad debts from banks, had acquired the right to collect a credit card debt owed by the plaintiff to the bank; the plaintiff brought suit against the defendant, arguing that the failure to attach the written contract between the credit card company and the plaintiff, which was the basis for the suit, violated section 2-606; the district court agreed with the plaintiff); see also Ramirez v. Palisades Collection LLC, No. 07-C-3840, slip op. at 3, 2008 WL 2512679 (N.D. Ill. June 23, 2008) (same). Here, the original credit card contract was not attached. Nor did the complaint include a recitation of all the relevant terms of the contract. See 735 ILCS 5/2-606 (West 2006) (written instrument must be attached to the pleading as an exhibit or recited therein). Finally, plaintiff failed to include an affidavit stating facts showing that the instrument was not accessible to it so as to excuse the failure to attach the written contract. 735 ILCS 5/2-606 (West 2006).
What is attached to the complaint is plaintiff's "Statement of Account," dated October 6, 2005, an affidavit reiterating what is stated in the "Statement of Account," and Household Bank's standard "Cardmember Agreement and Disclosure Statement." The "Statement of Account," generated by plaintiff, stated that defendant's account balance with Household Bank when the debt was charged off was $22,598.50, consisting of $17,078.18 in principal and $5,520.32 in accrued interest, and was "calculated with the default interest rate of 9.99% on the principal amount from the date of the original creditor's charge off through the present." This document is not the written credit card contract between defendant and Household Bank. See Parkis, slip op. at 4-5 (debt collector's "Affidavit of Indebtedness," executed by debt collector's account manager and stating the consumer's account balance on his credit card, was not "the basis on which the debt was being sued for," for purposes of section 2-606).
Also, the affidavit attached to the complaint was insufficient for purposes of section 2-606. The affidavit, prepared by plaintiff's service manager, set forth that the service manager had "knowledge of an account in favor of Velocity Investments, LLC and against Gregory Alston with a principal balance due $17,078.18 and interest of $5,520.32 as of May 16, 2006; plus interest at 9.99% from the aforesaid date; until paid is with my knowledge true and correct, after all credits due the defendant, and that further all services were rendered
Likewise, Household Bank's standard "Cardmember Agreement and Disclosure Statement" is not the written contract, as it offers no evidence that defendant agreed to be bound by these terms or that these terms even applied to this particular account. See Portfolio Acquisitions, L.L.C. v. Feltman, 391 Ill.App.3d 642, 651, 652, 330 Ill.Dec. 854,
Lastly, in the trial court, plaintiff also relied on computerized printouts of defendant's account history to contest defendant's motion to dismiss. Specifically, plaintiff countered that "these documents have already been admitted as the account history is attached to the 222 Disclosure, 90 (C) package and the Request to Admit. Thus, the defendant has admitted the accuracy of the account statements as well as the credit card contract and has failed to respond to any of those documents." First, the account history could not be considered the written instrument upon which plaintiff's claim is based. See Ramirez, slip op. at 4 (billing statements do not contain terms defining acts of default or other remedies, nor do they state whether terms can be altered; it is also questionable whether billing statements reflect an affirmative promise to pay by the customer).
Furthermore, at the same time that the trial court denied defendant's motion to dismiss, it also granted defendant additional time to respond to plaintiff's request to admit. Defendant did so and stated that the account number cited by plaintiff was not for defendant's account; he had never used the account; and he never signed an agreement under that account number. Thus, he did contest the existence of the credit card contract at the heart of this case.
Plaintiff's failure to attach a copy of the credit card contract to the complaint, recite the terms of the contract within the complaint, or attach an affidavit showing that the document is inaccessible is grounds for dismissal. Sherman, 392 Ill. App.3d at 733, 331 Ill.Dec. 557,
Vacated and remanded.
McLAREN and HUTCHINSON, JJ., concur.
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