Thursday, March 16, 2023

FYI: Ill App Ct (1st Dist) Reverses Dismissal of Claims That Choice of Law Provisions in Mortgage Loan Docs Violated IMFL

The Illinois Court of Appeals, First Judicial District, recently reversed a trial court's order dismissing a quiet title lawsuit that alleged a lender's commercial loan agreement violated the Illinois Mortgage Foreclosure Law (IMFL) and was invalid and unenforceable.

 

In so ruling, the First District held that disputed issues of fact regarding the legal significance and enforceability of various choice of law and forum selection provisions in the loan documents, among other factual issues raised by the allegations in the complaint, were sufficient to survive a motion to dismiss.

 

A copy of the opinion is available at:  Link to Opinion

 

An individual ("Plaintiff") entered into a loan agreement to finance a real estate rehabilitation project of a property located in Illinois ("Property"). The lender required that Plaintiff establish a limited liability company("LLC") in Utah, and that the LLC hold title to the Property. 

 

Plaintiff and the lender were joint owners of the LLC.  Plaintiff, as the president of the LLC, signed a promissory note as that promised to pay Lender the principle of $84,000.00. The lender also required Plaintiff to sign various documents such as a security agreement, loan agreement ("loan documents"), individually and as an officer of the LLC. 

 

Under the loan documents, plaintiff pledged his membership interest in the Utah LLC as collateral for the loan and personally guaranteed it.  In addition, the loan documents provided that the loan "shall be construed and governed under the laws of the State of Utah, and jurisdiction for any disputes relating to this Agreement or the Note shall be in Utah State Courts sitting in Salt Lake County, Utah."

 

After the closing of the loan, title to the Property was transferred to the LLC.  Under the terms of the promissory note, if Plaintiff did not complete the rehabilitation project within sixty (60) days, Plaintiff defaulted. Plaintiff did not complete the rehab project in 60 days. In order to prevent a foreclosure proceeding on Plaintiff's interests in the LLC, the lender required Plaintiff to make payments of $1,888.00 per month toward a total amount due of $135,000.00.

 

Plaintiff did not accept these terms and the lender proceeded to use the Utah legal system to take control of the LLC. Plaintiff subsequently filed a complaint against the lender and LLC ("Defendants") seeking to quiet title and alleging that the Defendants violated the Illinois Mortgage Foreclosure Law ("IMFL") by taking possession of the Property via the LLC without complying with the IMFL.

 

The Defendants filed a motion to dismiss, arguing that the LLC acquired title to the property, the purchase of the property was funded by the lender, and as part of the lending agreement Plaintiff permissibly pledged his membership interest in the LLC as collateral for the loan and personally guaranteed the loan. Defendants further argued that after maturation of the loan, the LLC defaulted and plaintiff did not comply with the terms of the personal guaranty. As a result, the Defendants argued that the lender acted lawfully when it auctioned and subsequently acquired the LLC's membership interest in Utah.

 

In response, Plaintiff argued the loan terms violated public policy and the IMFL , and that he did not enter into the loan documents with knowledge that its terms bypassed Illinois foreclosure law, and that the Defendants took advantage of Plaintiff.  The Defendants countered that the LLC did not make any payments after maturation of the loan and that under the UCC a debtor could pledge his membership interest in an LLC as collateral. Essentially, Defendants argued they were only enforcing their rights under the UCC and that Plaintiff's membership interest in the LLC did not implicate the IMFL.

 

The trial court granted the Defendants' motion to dismiss.  This appeal followed.

 

On appeal, Plaintiff argued that the loan documents, specifically the security agreement, violated public policy and the mortgage was invalid and violated the IMFL because the lender required Plaintiff to form the LLC to obtain the financing. Plaintiff also argued that the Utah was not a court of competent jurisdiction to determine issues concerning Illinois Property and mortgage, and that the Utah litigation was only related to a money judgment against the plaintiff. Defendants argued that the trial court's dismissal was proper because of the Utah forum selection clauses contained in the loan documents and the ruling of the Utah court in favor of the lender meant Plaintiff's claims were barred by res judicata.

 

During the appeal, the Appellate Court ordered the Office of the Illinois Attorney General's Consumer Protection Division ("Attorney General") to file an amicus brief regarding their position on the case. The Illinois Attorney General's Office generally supported Plaintiff's position and argued that the Defendants failed to show that dismissal is warranted based on both the Utah forum selection clauses contained in the loan and security agreements and res judicata.

 

Plaintiff argued that Illinois law applied and Defendants argued that Utah law applied.  The Appellate Court examined both and determined that, regardless of which state's law applied, Plaintiff's complaint should not have been dismissed based on the forum selection clauses contained in the loan documents.

 

In Utah, a Plaintiff's claim that a contract was entered into fraudulently is "sufficient to render the forum selection clause unenforceable." Energy Claims Ltd. v. Catalyst Investment Group. Ltd., 2014 UT 13, ¶¶ 51-53. Because Plaintiff's complaint included allegations that the entire loan transaction was improper and lender's practices were deceptive and unlawful, the Appellate Court concurred with the Plaintiff and Attorney General's office and held that Plaintiff's complaint should not be dismissed under Utah law.

 

Under Illinois law, "a forum-selection clause in a contract is prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances." Dancor Construction, Inc. v. FXR Construction, Inc., 2016 IL App (2d) 150839, ¶ 75.  In order to invalidate a forum selection clause the alleged fraud must be specific to the forum selection clause. IFC Credit Corp. v. Rieker Shoe Corp., 378 Ill. App. 3d 77, 93 (2007).

 

Because the Plaintiff and Defendants both relied on portions of the loan documents to support their respective arguments, and the loan documents contained inconsistent provisions regarding which state law governs, the Appellate Court held there were issues of fact as to the factors the court must consider to determine if it would be unreasonable under the circumstances to enforce the forum selection clauses.

 

Accordingly, the Appellate Court held that the trial court erred in dismissing plaintiff's complaint based on the forum selection clauses contained in the loan documents.

 

Plaintiff also argued that the trial court improperly determined that that res judicata applied to the complaint based on the Utah judgment. Plaintiff argued that the lender's lawsuit was related to a money judgment against Plaintiff, not to determine ownership rights of the property. Lender argued that Plaintiff's entire complaint was barred by res judicata because the issue of the ownership of the LLC has already been adjudicated by a court in Utah, which determined that Lender owns the LLC.

 

Illinois and Utah law both require the party who claims the doctrine applies must prove three elements, including: (1) a final judgment on the merits, (2) an identity of the parties or their privies, and (3) an identity of causes of action. The Appellate Court held that lender did not meet its burden to prove that res judicata barred Plaintiff's claim because the Utah order did not specifically state the issues or causes of action in the case sufficiently to determine whether the causes of action are the same as they are in this case.

 

Although the Utah judgment mentioned the security agreement, Plaintiff's claims were based on other agreements in the loan documents not referenced by the Utah order. Additionally, the Appellate Court, relying partially on the Attorney General's position that the court need not apply res judicata if it would be fundamentally unfair to do so, held there are questions of fact regarding whether it would be unreasonable or unfair to apply res judicata to Plaintiff's complaint. 

 

Lastly, the Appellate Court held that the trial court's dismissal of Plaintiff's IMFL claim was improper because the trial court's order relied on Defendants' assertion that it did not violate IMFL, a conclusion of law which required the determination of various underlying facts that were disputed. Because the trial court's dismissal was based on factual disputes, dismissal was not proper.

 

Accordingly, the Appellate Court reversed and remanded for further proceedings.

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320

Fax: (312) 284-4751

Mobile:  (312) 493-0874

Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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Sunday, March 12, 2023

FYI: Illinois Sup Ct Holds New BIPA Cause of Action Accrues With Each Violation

The Illinois Supreme Court recently held that a separate claim accrues under the Illinois Biometric Information Privacy Act (BIPA) each time a private entity scans or transmits an individual's biometric identifier or other protected information in violation of section 15(b) or (d) of the BIPA.

 

A copy of the opinion is available at:  Link to Opinion

 

A manager for a fast food restaurant chain brought a class action suit in federal court against the restaurant chain on behalf of a putative class of employees who allegedly scanned their fingerprints to access their paystubs and company computers. The manager alleged that the restaurant chain unlawfully collected her alleged biometric information and disclosed it to its third-party vendor in violation of sections 15(b) and (d) of BIPA.

 

The restaurant chain filed a motion for judgment on the pleadings, arguing that the manager's claims were untimely because they first accrued when BIPA went into effect in 2008, more than 10 years before the complaint was filed. The manager responded by arguing that a new claim accrued each time she scanned her fingerprints and the restaurant chain sent her biometric data to its third-party authenticator.

 

The federal trial court agreed with the manager and denied the restaurant chain's motion. The trial court later certified its order for immediate interlocutory appeal, finding that its decision involved a controlling question of law on which there was substantial ground for disagreement.

 

The U.S. Court of Appeals for the Seventh Circuit accepted the certification and found the parties' competing interpretations of claim accrual reasonable under Illinois law and thus certified the following question to the Illinois Supreme Court:

 

"Do section 15(b) and 15(d) claims accrue each time a private entity scans a person's biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?"

 

The Illinois Supreme Court began by noting that section 15(b) of BIPA mandates informed consent from an individual before a private entity collects biometric identifiers or information. Specifically, section 15(b) provides that "[n]o private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or biometric information unless it first" obtains informed consent from the individual or the individual's legally authorized representative. 740 ILCS 14/15(b).

 

After reviewing section 15(b)'s plain language, the Illinois Supreme Court agreed with the manager that "collect" in the context of the statute means to "to receive, gather, or exact from a number of persons or other sources" and "capture" means "to take, seize, or catch." Webster's Third New International Dictionary 334, 444 (1993).

 

Additionally, the Court disagreed with the restaurant chain that these were things that could happen only once; the restaurant chain obtained an employee's fingerprint and stored it in its database, but the employee was then also required to use his or her fingerprint to access paystubs or company computers. The Court determined that the restaurant chain failed to explain how such a system could work without collecting or capturing the fingerprint every time the employee needed to access his or her computer or pay stub.

 

Furthermore, the Illinois Supreme Court held that the restaurant chain's suggestion that the "unless it first" phrase in section 15(b) refers only to the first collection of biometric information was inaccurate because that phrase actually refers to the private entity's statutory obligation to obtain consent or a release. See 740 ILCS 14/15(b).

 

Similar to section 15(b), the Court noted that section 15(d) mandates consent or legal authorization before a specific action is taken. It provides that "[n]o private entity in possession of a biometric identifier or biometric information may disclose, redisclose, or otherwise disseminate a person's or a customer's biometric identifier or biometric information unless" it obtains informed consent from the individual or their legal representative or has other legal authorization to disclose that information. 740 ILCS 14/15(d).

 

As with section 15(b), the Illinois Supreme Court concluded that the plain language of section 15(d) applies to every transmission to a third party. The Court reasoned that it did not need to specifically determine the meaning of "redisclose" in section 15(d) because the other terms in that section are broad enough to include repeated transmissions to the same party. "Disclose" means to "expose to view," Webster's Third New International Dictionary 645 (1993)), and Webster's gives as an example something happening more than once: "the curtain rises to [disclose] once again the lobby" Id. The Court pointed out that a fingerprint scan system requires a person to expose his or her fingerprint to the system so that the print may be compared with the stored copy and that this happens each time a person uses the system.

 

Additionally, the Illinois Supreme Court determined that section 15(d) has a catchall provision that broadly applies to any way that an entity may "otherwise disseminate" a person's biometric data. "Disseminate" means "to spread or send out freely or widely." Id. at 656. The restaurant chain asserted that this was something that could happen only once, but the Court found that the chain provided no definitional support for this assertion.

 

Accordingly, the Illinois Supreme Court answered the certified question by holding that the plain language of sections 15(b) and (d) requires that a claim accrues under BIPA upon each transmission of a person's biometric identifiers or other protected information without prior informed consent.

 

Lastly, the Illinois Supreme Court concluded that the statutory language made clear that the Illinois legislature chose to make damages under BIPA discretionary, rather than mandatory. However, the Court invited the Illinois legislature to address any policy-based concerns about potentially excessive damages awards.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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