Mosiman v. BMW Financial Services NA, Inc.

State: Illinois

Court: 3rd District Appellate

Docket No: 3-00-0723 Rel

Case Date: 04/19/2001

April 19, 2001

No. 3--00--0723

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

ROBERT D. MOSIMAN,
Indiv. and on Behalf of
a Class of Similarly Situated
Individuals,
Plaintiff-Appellant,

BMW FINANCIAL SERVICES NA,
INC., a Delaware Corporation
Authorized to do Business in
the State of Illinois; JOE
McCARTHY OLDS-GMC TRUCK, INC.,
an Illinois Corporation, d/b/a
Joe McCarthy Olds, Inc., and
d/b/a Joe McCarthy; and JOE
McCARTHY, Indiv.,
Defendants-Appellees.

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Appeal from the Circuit Court
for the 10th Judicial Circuit,
Peoria County, Illinois

No. 99--MR--278

Honorable
Richard E. Grawey
Judge, Presiding

JUSTICE BRESLIN delivered the opinion of the court:

PROCEDURAL HISTORY

Plaintiff Robert D. Mosiman entered into a three-year leasewith defendant Joe McCarthy Olds-GMC Truck, Inc. (McCarthy Olds) for a new BMWroadster. The lease was provided by defendant BMW Financial Services NA, Inc.(BMW), and assigned all right, title and interest in the vehicle to BMW.

One month later, Mosiman filed a five-count complaintindividually and as a class action against defendants BMW, McCarthy Olds and JoeMcCarthy individually (collectively BMW), alleging that BMW violated theIllinois Consumer Fraud and Deceptive Business Practices Act (Consumer FraudAct) (815 ILCS 505/1 et seq. (West 1998)). Additionally, Mosimanasserted claims of common law fraud, conspiracy and unjust enrichment.

BMW filed a motion to dismiss pursuant to section 2-615 ofthe Illinois Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615 (West1998)). The trial court granted the motion and Mosiman appealed. We affirm andhold that an automobile lease is not fraudulent or in violation of the IllinoisConsumer Fraud Act when it combines reimbursement of the use tax with other feesand taxes assessed rather than identifying the use tax reimbursement separately.

FACTS

Most states impose a tax on the lease of a motor vehicle.Lessees typically pay the tax for each month the vehicle is leased. In Illinois,the tax is imposed on the "user" of the property. 35 ILCS 105/3 (West1998). Thus, it is called a use tax. But, unlike other states, Illinois lawdefines the term "user" as the owner-lessor of the property. ContinentalIllinois Leasing Corp. v. Department of Revenue, 108 Ill. App. 3d 583, 439N.E.2d 118 (1982). Also unique to Illinois, the total use tax is commonly passedon to the lessee at the time the lease is signed.

On appeal, Mosiman suggests that use of the BMW leaseconstituted an unfair and deceptive business practice under Illinois