Commercial Banking, Collections, and Bankruptcy

Dist. Ct. did not err in dismissing as untimely plaintiff’s breach of contract action involving shipment of olivine sand, where contract between parties required plaintiff to file any cause of action with respect to breach of said contract within four months of discovery of any “dispute,” and where plaintiff waited two years to file instant lawsuit. While plaintiff argued that relevant provision required that it only notify defendant of any dispute within four months of its discovery, other provisions of contract indicated that term “dispute” more likely referred to “lawsuit” to be brought under instant contract. Moreover, other provisions in contract contained “notification” requirements, which precluded finding that instant four-month provision was mere notification requirement. Also, parties’ conduct following signing of contract was irrelevant, where contract was not ambiguous.

Dist. Ct. did not err in dismissing as time-barred plaintiff’s breach of contract claims alleging that defendant provided defective components to build plaintiff’s “SwingSmart” devices, where instant contract was primarily contract for sale of goods that was subject to 4-year limitation period as set forth in UCC. Fact that Illinois had 10-year limitation period for breach of written contracts, that agreement stated no quantity, price or delivery date of goods to be produced, or that there were no goods in existence at time parties signed agreement did not require different result. Moreover, said contract claims, which included breach of good faith and fair dealing and breach of warranty, were untimely, since plaintiff waited more than four years beyond tender of defective components to file instant lawsuit. However, Dist. Ct. erred in dismissing on timeliness grounds plaintiff’s tort claims for fraud and fraudulent misrepresentation, since: (1) said claims did not merely re-state contract claims, but rather asserted different duty to perform in that plaintiff alleged that defendant misrepresented that it had requisite skills to perform on instant contract; and (2) applicable limitations period for fraud is five years, which rendered fraud claims timely.

Dist. Ct. erred in dismissing plaintiffs-Indiana liquor retailers lawsuit alleging that Illinois statute’s failure to give them opportunity to apply for license to ship liquor to Illinois consumers violates Commerce Clause and Privileges and Immunities Clause of U.S. Constitution, where said law provides opportunity for liquor retailers in Illinois to obtain license to ship liquor to Illinois consumers. While defendants argued that instant restriction fell within reserved powers under 21^St Amendment and was otherwise necessary to protect State’s legitimate interests in health and well-being of Illinois residents, Ct. of Appeals found that Dist. Ct. failed to conduct necessary inquiry regarding State’s justification for requiring in-state presence for retailers who wish to make state-wide shipments of liquor sales. Ct. further noted that statute itself mentions threat of direct marketing of liquor to “economy of its State,” and thus State needs to explain why it needs to discriminate against interstate commerce and flatly bar out-of-state retailers from obtaining license to ship liquor to Illinois consumers.

Dist. Ct. did not err in granting defendant-FDIC’s motion for summary judgment in plaintiff-former bank employee’s motion to recover “change of control benefit” that plaintiff asserted that he was entitled to receive after FDIC was appointed receiver of bank that employed plaintiff, and after FDIC disaffirmed benefits agreement between bank and plaintiff. Under agreement, plaintiff was to receive $240,000 in benefits if bank terminated plaintiff within 12 months of change of bank’s control for reasons other than death, disability or retirement, and defendant could properly maintain that plaintiff could not receive such payment, since said benefit was akin to “golden parachute payment” that was prohibited by 12 USC section 1828(k), where: (1) said agreement concerned payment of compensation by bank to plaintiff, where bank was insured depository institution, and plaintiff was institution-affiliated party, and (2) payment was contingent upon plaintiff’s termination of employment after change of bank’s control, which occurred after defendant’s appointment as bank’s receiver. Moreover, record did not support plaintiff’s claim that instant benefit was in essence bona fide deferred compensation plan, where bank did not ever designate fund that was specific to him and to terms of his potential benefits as outlined in agreement.

Dist. Ct. did not err in granting defendant-bank’s motion for summary judgment in action under Real Estate Settlement Procedures Act (RESPA), where plaintiff-mortgagee alleged that defendant failed to respond adequately to written request regarding status of his loan. Record showed that plaintiff made RESPA request at time when he had already lost state-court mortgage foreclosure action, and as such, plaintiff could not recover damages under 12 USC section 2605(f) where mortgage had already been foreclosed on. Moreover, RESPA was not intended to provide borrowers with federal discovery tool to litigate state-court foreclosure action. Also, record showed that defendant had served timely response that adequately addressed certain questions posed by plaintiff. Moreover, although defendant gave only incomplete responses to certain questions, plaintiff was unable to show existence of any compensable injuries arising out of said incomplete responses, where: (1) plaintiff’s $900 out-of-pocket expense to pay attorney to review defendant’s responses is not appropriate RESPA injury; (2) simply having to file instant lawsuit did not suffice as actionable harm; and (3) plaintiff’s fear of losing home did not qualify as emotional harm linked to any alleged RESPA violation, where said fear was related to fact that plaintiff could not make timely payments towards his mortgage.

Dist. Ct. did not err in granting defendant’s motion for summary judgment in action alleging that defendant-car repossession company violated Fair Debt Collection Practices Act by demanding that plaintiff pay $100 to retrieve her personal property that had been left in car that defendant had repossessed after plaintiff had failed to make payments on said car. While plaintiff argued that said demand constituted impermissible demand for payment on debt, plaintiff failed to support her claim that defendant had made such a demand on her, and defendant otherwise produced documentation indicating that creditor would make such payment to defendant as administrative expense. Moreover, plaintiff failed to show that any demand for payment of instant $100 handling fee was made on behalf of creditor.

Dist. Ct. did not err in certifying nation-wide class action and Illinois sub-class in plaintiff’s action alleging that defendant breached warranties of fitness for particular purpose and merchantability, where defendant’s software that advertised fixes for common problems affecting computer speed and performance did not work as advertised. Plaintiff satisfied numerosity, typicality and commonality elements for seeking class certification under Rule 23(a), where: (1) Dist. Ct. identified common questions regarding functions that defendant's marketing materials represented that software could perform; and (2) plaintiff’s claim likely arose from same events/problems or course of conduct that others in proposed class experienced with respect to defendant's software. Moreover, plaintiff served as adequate class representative who had same interest and injury as proposed class. Also, Dist. Ct. could properly find that questions of law or fact predominated, even though questions remained for each class member as to purpose in purchasing software and amount of damages that each member incurred.

Dist. Ct. did not err in dismissing plaintiff’s action seeking enforcement of contract calling for transfer of 27 percent interest in defendant should defendant not pay $16 million to redeem notes defendant issued to plaintiff’s creditors. While Dist. Ct. erred in finding that transfer of ownership in defendant-limited liability company was not possible because defendant did not “own itself,” other language in contract included hold-harmless clause that precluded plaintiff from enforcing said notes against defendant, because whatever defendant gave to plaintiff would be returned to defendant in indemnification. Result could have been different had plaintiff paid on said notes and then been subrogated to creditors’ rights in said notes. Also, under Wisc. law, plaintiff was not entitled to enforce notes where plaintiff was not their holder and was not in possession of said notes.

In action under Fair Debt Collections Practices Act, Dist. Ct. did not err in finding that defendant (entity hired by creditor to collect credit card debt from plaintiff) had waived any motion to compel arbitration of said claim, even though said arbitration clause was contained in credit card agreement between plaintiff and creditor. Record showed that defendant did not discover existence of arbitration agreement for eight months and then waited additional five months to file motion to compel arbitration, and that defendant lacked any reasonable excuse for said delays. Moreover, defendant’s decision to litigate merits of plaintiff’s legal theory via filing motion to dismiss was inconsistent with desire to arbitrate plaintiff’s claim, especially where defendant did not file motion to compel arbitration until after motion to dismiss had been denied, and after plaintiff had obtained class action certification and parties had litigated certain discovery disputes.