A copy of the opinion is available at: http://www.state.il.us/court/Opinions/AppellateCourt/2012/2ndDistrict/2110904.pdf.
Attached to the second amended complaint were: (1) an affidavit signed by an agent of Debt Purchaser indicating among other things that the original credit card issuer had made an offer of credit to Card Holder in the form of a credit card with terms and conditions governing the use of the card and that Card Holder accepted the credit offer by using the card; (2) a chain of title reflecting assignment of the debt; and (3) a copy of an undated Customer Agreement and Disclosure Statement ("Customer Agreement"), providing in part that the account holder promised to pay the total amount of purchases as well as any finance charges.
Eventually, after holding hearings in which the trial court expressed uncertainty as to the actual pleading requirements for the claims at issue, the lower court ruled that, although there was a potential cause of action in the case, Debt Purchaser had repeatedly failed to plead a proper cause of action based on an unwritten contract.
The trial court dismissed with prejudice. Debt Purchaser appealed. The Appellate Court reversed and remanded, allowing Debt Purchaser to re-plead in accordance with the parameters set forth in its opinion.
In this case, the Court noted, the complaint failed to allege that there was a contract between the parties or that Debt Purchaser had performed under the contract. The Appellate Court also pointed out that if the generic Customer Agreement attached to the complaint was intended to reflect the terms of the contract with Card Holder, Debt Purchaser had failed to plead that it applied to Card Holder's credit card account.
Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
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