McCready v. Illinois Secretary of State

888 N.E.2d 702, 382 Ill. App. 3d 789
CourtAppellate Court of Illinois
DecidedMay 15, 2008
Docket3-06-0521
StatusPublished
Cited by16 cases

This text of 888 N.E.2d 702 (McCready v. Illinois Secretary of State) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCready v. Illinois Secretary of State, 888 N.E.2d 702, 382 Ill. App. 3d 789 (Ill. Ct. App. 2008).

Opinion

JUSTICE LYTTON

delivered the opinion of the court:

Plaintiff, Kenneth McCready, filed a 14-count complaint against defendants Illinois Secretary of State Jesse White, Automotive Body and Tire Center, Inc. (AB&T), Krystyna Johnson and Phil Johnson but never served the Johnsons. White and AB&T filed motions to dismiss, which the trial court granted. We affirm.

BACKGROUND

Plaintiff is in the business of purchasing vehicles at lien sales to resell at a profit. He also buys loans that are secured by security interests in motor vehicles titled in Illinois. As a part of his business, plaintiff files requests with Secretary White to obtain copies of vehicle title histories.

In May 2004, plaintiff filed a complaint against White. In January 2005, plaintiff amended his complaint, adding new claims and new defendants, including AB&T and its officers, Krystyna Johnson and Phil Johnson. In November 2005, plaintiff filed a second amended complaint consisting of 14 counts. Plaintiff never properly served Krystyna Johnson or Phil Johnson with the amended complaint or second amended complaint.

In counts I through III of his second amended complaint, plaintiff alleged that White violated the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2004)) by failing to provide him with full and complete copies of vehicle title histories he requested in 1999 and 2004.

In count IV, plaintiff requested declaratory judgment against all defendants for wrongfully omitting any reference to a security interest that plaintiff held in a vehicle. According to plaintiff, he purchased a security interest in a Pontiac Bonneville from Carrollton Bank on October 14, 1998. In support of this allegation, plaintiff attached to his complaint the security agreement between the vehicle’s owner, Juan Ingram, and Carrollton Bank. At the bottom of the agreement, the following handwritten language appears: “ASSIGNMENT: ASSIGNED TO KENNETH MCCREADY WITHOUT RECOURSE. BY: J.E. WATT, SVP[,] CARROLLTON BANK[,] JUNE 25, 2003.” According to plaintiff, AB&T unlawfully erased his valid, perfected security interest in the vehicle by pretending that Phil Johnson purchased the vehicle from AB&T and then requesting a new title. Plaintiff further alleged that White acted unlawfully in removing Carrollton Bank’s security interest from the certificate of title and title history for the Pontiac Bonneville.

Counts V through IX were directed against AB&T. Count V alleged that AB&T violated the Illinois Vehicle Code (625 ILCS 5/1 — 100 et seq. (West 2004)) and the Labor and Storage Lien Act (770 ILCS 45/ 0.01 et seq. (West 2004)) by intentionally omitting reference to plaintiffs security interest in its application for a new certificate of title, falsely representing that a public sale of the Bonneville had taken place, and pretending that the vehicle had been sold to Phil Johnson. Plaintiff requested monetary damages in the amount of $5,660.61, representing the unpáid balance plus interest on the loan Carrollton Bank transferred to plaintiff.

In count VI, plaintiff alleged that AB&T violated the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2004)) by taking part in a scheme to procure titles in its own name and wipe valid, prior perfected security interests from those titles. Count VII alleged that AB&T violated the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2004)) by refusing to disclose to plaintiff when public sales would occur, including the 1998 sale of the Pontiac Bonneville. Plaintiff requested injunctive relief in both of these counts.

In count VIII, plaintiff alleged that AB&T committed a conversion by intentionally omitting his security interest in the Bonneville. Plaintiff sought actual damages of $3,100, which plaintiff claimed was the value of his security interest in the Bonneville when it was sold. Count IX alleged that AB&T committed a civil conspiracy by obtaining title to the Bonneville and wiping evidence of plaintiffs security interest from the vehicle’s title. In this count, plaintiff sought monetary damages of $5,660.61, representing the value of plaintiffs security interest in the Bonneville, plus interest.

Counts X through XIV were directed solely against Secretary White, seeking to require White to act or refrain from acting. In count X, plaintiff sought a declaration that Public Act 85 — 1283 is unconstitutional. In count XI, plaintiff sought a declaration that the portion of section 1002.20 of Title 92 of the Illinois Administrative Code (92 Ill. Adm. Code §1002.20, amended at 21 Ill. Reg. 466 (eff. January 1, 1997)) that defines the term “other business entities” is unconstitutional, invalid and unenforceable. In count XII, plaintiff sought a declaration that he was entitled to statutory exemptions from waiting and redaction of information in his requests for vehicle information. In count XIII, plaintiff alleged that the “information request forms” adopted by White violate Illinois law and sought a mandamus order compelling White to promulgate a new form. Finally, in count XIV plaintiff brought a quo warranto action seeking removal of White from office.

Defendant White filed a motion to dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615, 2 — 619 (West 2004)), alleging that plaintiff’s complaint should be dismissed with prejudice because (1) plaintiff’s claims violated the applicable statutes of limitations, (2) counts I through III failed to state a claim under the FOIA, (3) plaintiff was not entitled to declaratory relief, and (4) plaintiff could not allege facts to support his mandamus or quo warranto claim. Defendant AB&T filed a motion to dismiss, alleging that (1) all of the counts against it should be dismissed pursuant to sections 2 — 606 and 2 — 615 of the Code because no document attached to the complaint showed that plaintiff had any enforceable interest in the Pontiac Bonneville, and (2) plaintiffs claims under the Uniform Deceptive Trade Practices Act and the Consumer Fraud and Deceptive Business Practices Act should be dismissed pursuant to section 2 — 619 of the Code because they were barred by statutes of limitation.

The trial court granted defendants’ motions and dismissed plaintiffs second amended complaint with prejudice, “adopting] the reasoning in each [motion to dismiss] as its position on all of the Counts of the 2nd Amended Complaint.”

ANALYSIS

Section 2 — 606 of the Code requires that a written instrument upon which a claim or defense is founded be attached to the pleading as an exhibit or recited therein. 735 ILCS 5/2 — 606 (West 2004). If the instrument is attached to the pleading as an exhibit, it constitutes part of the pleading. 735 ILCS 5/2 — 606 (West 2004).

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Cite This Page — Counsel Stack

Bluebook (online)
888 N.E.2d 702, 382 Ill. App. 3d 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccready-v-illinois-secretary-of-state-illappct-2008.