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No. 2--99--1372

1 December 2000

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Plaintiff, Susanne L. Valentino, appeals the judgment of the circuit court of Du Page County granting the motion ofdefendant First Bank, a/k/a First Bank/U.S. Bank (defendant), to dismiss counts VII and VIII of plaintiff's complaint.Weaffirm.

In February 1998, plaintiff purchased a 1996 Nissan Maxima from Glendale Nissan,Inc. Plaintiff signed a retail installment agreement to finance the purchase. The agreement was assigned to defendant. Under the terms of the agreement,defendant was granted a purchase-money security interest in the car. The retailinstallment agreement contained the following provisions:

"SECURITY INTERESTS: Seller is granted a purchase-money security interest in themotor vehicle described above and all accessions under the Illinois UniformCommercial Code until the Total of Payments and all future indebtedness for taxes,liens, repairs and insurance premiums advanced by holder hereunder are paid infull.

Security: You are giving a security interest in the goods being purchased and inany moneys, credits or other property of yours in the possession of the Assignee,on deposit or otherwise.

Upon the occurrence of any event of default, the holder of this contract shallhave the rights and remedies provided by Article 9 of the Illinois UniformCommercial 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 judicialprocess, and for such purpose, to enter upon the premises where it may belocated."

We note that a copy of the certificate of title is not part of the record onappeal. Defendant claims that it perfected its lien in accordance with therequirements of the Illinois Vehicle Code (625 ILCS 5/3--202 (West 1998)) and isnamed as the first lienholder on the certificate of title. Plaintiff does notdispute this fact.

In December 1998, plaintiff's counsel sent correspondence to Glendale Nissan,Nissan Motor Corporation, and defendant informing them that Glendale Nissan mayhave violated the Illinois Consumer Fraud and Deceptive Business Practices Act(815 ILCS 505/1 et seq. (West 1998)). The letter reaffirmed plaintiff's previousrevocation of acceptance and informed defendant that she would cease makingpayments on the retail installment contract. Shortly thereafter, plaintiff ceasedpaying her monthly installment payments to defendant, and on March 10, 1999,defendant repossessed the car.

Plaintiff filed a complaint on March 31, 1999, against the dealer, manufacturer,and defendant for breach of warranty, revocation of acceptance, cancellation ofthe retail installment contract, fraud, and consumer fraud. Relevant to thiscase, counts VII and VIII alleged conversion and a violation of the IllinoisConsumer Fraud and Deceptive Business Practices Act solely against defendant.

Defendant filed a motion to dismiss counts VII and VIII pursuant to section 2--619of the Code of Civil Procedure (735 ILCS 5/2--619 (West 1998)). Defendant arguedthat by failing to make the required monthly installment payments plaintiff was indefault under the contract and defendant had the right to repossess the carpursuant to the terms of the contract and Article 9 of the Uniform CommercialCode-Secured Transactions (810 ILCS 5/9--101 et seq. (West 1998)). Defendant alsoargued that, under the terms of the contract and Article 9, it possessed apurchase-money security interest that is superior to the security interest claimedby plaintiff. Because defendant had the right to repossess the car, defendantargued that there could be no claim for conversion or a violation of the IllinoisConsumer Fraud and Deceptive Business Practices Act. The trial court agreed andgranted defendant's section 2--619 motion to dismiss counts VII and VIII ofplaintiff's complaint. Plaintiff timely appeals.

The purpose of a section 2--619 motion to dismiss is to afford litigants a meansto dispose of issues of law and easily proved issues of fact at the outset of acase, reserving disputed questions of fact for a jury trial. Petty v. Crowell,306 Ill. App. 3d 774, 775 (1999). In addressing a section 2--619 motion, a courttakes all well-pleaded facts in the complaint as true, and only the complaint'slegal sufficiency is contested. Petty, 306 Ill. App. 3d at 776. We review thegranting of a section 2--619 motion de novo. Petty, 306 Ill. App. 3d at 776.

On appeal, plaintiff argues that she has a possessory security interest in the carunder section 2--711(3) of the Uniform Commercial Code (UCC) (810 ILCS 5/2--711(3)(West 1998)). Plaintiff further contends that her section 2--711(3) securityinterest has priority over defendant's purchase-money security interest based onsection 433.2 of the Code of Federal Regulations (FTC Rule) (16 C.F.R.