Oldendorf v. General Motors Corp.

State: Illinois

Court: 2nd District Appellate

Docket No: 2-00-0343 Rel

Case Date: 06/07/2001

June 7, 2001

No. 2--00--0343

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

STEVEN L. OLDENDORF and
DANA M. OLDENDORF,

Plaintiffs-Appellants,

GENERAL MOTORS CORPORATION; DAN
WOLF PONTIAC-GMC TRUCKS, INC.;
HARRIS BANK BARRINGTON, N.A.;
and JUDICIAL RECOVERY SYSTEMS,
INC., a/k/a REI Towing,

Defendants-Appellees.

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Appeal from the Circuit Court
of Du Page County.

No. 99--L--332

Honorable
Edward R. Duncan, Jr.,
Judge, Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiffs, Steven and Dana Oldendorf, appeal the circuitcourt's order granting the motion of defendant Dan Wolf Pontiac-GMCTrucks, Inc. (Wolf), to dismiss counts IV and V of plaintiffs'amended complaint. Plaintiffs also appeal the court's ordergranting motions for summary judgment in favor of defendants HarrisBank Barrington, N.A. (Harris Bank), and Judicial Recovery Systems,Inc. (JRS), as to counts VII and VIII of plaintiffs' amendedcomplaint. (Plaintiffs pleaded two count VIIs in their originalcomplaint, which were repeated verbatim in their amended complaint;for purposes of this opinion, we refer to the second count VII ascount VIII.) We affirm the trial court's judgment granting summaryjudgment against plaintiffs as to counts VII and VIII of theiramended complaint and reverse the court's judgment dismissingcounts IV and V of the amended complaint. The portion of ouropinion regarding counts VII and VIII will not be published.

BACKGROUND

Plaintiffs purchased a used 1995 Pontiac Bonneville from Wolfon December 27, 1997. Plaintiffs financed the purchase andexecuted a retail installment agreement, which contained thefollowing provisions:

"SECURITY INTERESTS: Seller is granted a purchase-moneysecurity interest in the motor vehicle described above and allaccessories under the Illinois Uniform Commercial Code untilthe Total of Payments and all future indebtedness for taxes,liens, repairs and insurance premiums advanced by holderhereunder are paid in full.

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ACCELERATION: Buyer agrees that (1) if Buyer shall default in the payment of any installment of the Total ofPayments or any other indebtedness due hereon *** the holdermay declare all unpaid installments of the Total of Paymentsand all other indebtedness secured hereby immediately due andpayable, without notice or demand.

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5. Upon the occurrence of any event of default, the holder of this contract shall have the rights and remediesprovided by Article 9 of the Illinois Uniform Commercial Codeincluding, but not by way of limitation, the rights of theholder (a) to take immediate possession of the motor vehicle,with or without judicial process."

As required by section 433.2 of the Code of FederalRegulations (FTC Rule) (16 C.F.R.