SIXTH DIVISION
June 8, 2007
No. 1-06-0620
VINCENT BELLIK, ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellant, )
)
v. ) No. 04 M1 137529
)
BANK OF AMERICA, ) Honorable
) Judge James F. Stack,
Defendant-Appellee. ) Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
The instant cause involves third-party litigation wherein
Vincent Bellik, as a third-party plaintiff, filed a third-party
complaint against a number of third-party defendants, including
Bank of America.1
Bellik appeals from the circuit court's order that dismissed
with prejudice his third-party complaint against Bank of America
pursuant to section 2-615 of the Code of Civil Procedure (the
Code) (735 ILCS 5/2-615 (West 2004)). On appeal, Bellik contends
that the circuit court erred when it dismissed his complaint
because it was sufficient as a third-party complaint against Bank
of America. Alternatively, Bellik contends that the circuit
1
In his third-party complaint, Bellik also brought claims
against Gerald Gorman, individually and doing business as Dodge
of Midlothian; Daimler Chrysler Services North America, LLC; and
Bank of America. Bellik and Bank of America are the only parties
to the instant appeal.
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court erred in dismissing his complaint with prejudice where its
purported defects could be cured by amendment. For the reasons
that follow, we affirm the judgment of the circuit court.
BACKGROUND
The instant cause arose from litigation initiated by Harris
Bank2 against Vincent Bellik for money owed under a sales
contract for a 2002 Dodge Dakota (hereinafter referred to as
Harris Bank litigation). Following repossession and sale of the
Dakota in January 2004, Harris Bank recovered a deficiency
judgment against Bellik for $9,846.23.
In February 2005, as a result of the Harris Bank litigation,
Bellik, as third-party plaintiff, filed a "third party complaint
for declaratory judgment and other relief" against three third-
party defendants, namely: (1) vehicle dealer Gerald Gorman,
individually and doing business as Dodge of Midlothian (Gorman);
(2) Daimler Chrysler Services North America, LLC. (Chrysler); and
(3) Bank of America. This complaint is the subject of the
instant appeal.
Bellik's complaint alleged, in pertinent part, that he
traded in the Dakota (the vehicle at issue in the Harris Bank
litigation) to Gorman in connection with a sales contract for
Bellik's purchase of a 2003 Dodge Stratus (hereinafter Stratus
2
Harris Bank is not a party to this appeal.
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sales contract). Bellik further alleged that, pursuant to the
Stratus sales contract, "O'Gorman3 [sic] and Chrysler had an
obligation to promptly submit the payoff" of Harris Bank's lien
on the Dakota. According to Bellik, Gorman and Chrysler failed
to satisfy Harris Bank's lien on the Dakota, which constituted
breaches of their contractual and fiduciary duties. Bellik
further claimed that Bank of America was obligated under the
Stratus sales contract because it was "listed as a party" in that
contract.
Bellik attached to his complaint the Stratus sales contract,
which was dated September 29, 2003. In regard to the Dakota, the
Stratus sales contract indicated that Bellik had traded in a
"2002 Dodge Dakota" with a value of $20,000 and a lien payoff in
the amount of $19,863, for a net trade of $137. The purchase
price of the 2003 Stratus was $33,418.43. In regard to Bank of
America, the Stratus sales contract, in its entirety, referenced
Bank of America in one sentence, specifically, as follows:
"Buyer promises to pay to the order of
seller at the offices of Bank of America
(Assignee) located in Jacksonville, Illinois,
the amount financed shown above together with
3
In the pleadings, Bellik alternatively referred to Gerald
Gorman as "Gorman" and "O'Gorman." On appeal, both parties refer
to that individual as "Gorman," and we will also.
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a finance charge on the principal balance of
the amount financed from time to time unpaid
at the rate of 6.59% per annum from date
until maturity in 71 installments of $518.11
each and a final installment of $518.11,
beginning on November 13, 2003 and continuing
on the same day of each successive month
thereafter until fully paid."
Ultimately, Bellik's complaint contained three counts, all
of which were based on Gorman's and Chrysler's purported failure
to pay off Harris Bank's lien on the Dakota in connection with
Bellik's purchase of the Stratus. First, Bellik requested a
declaratory judgment that the balance owed by him under the
Stratus sales contract was "null and void," and that he was the
owner of the Stratus. Second, Bellik requested damages based on
Gorman's and Chrysler's alleged breach of contract. Third,
Bellik requested damages based on Gorman's and Chrysler's alleged
breach of fiduciary duty. Bellik also sought an "offset" of the
debt due to Bank of America under the Stratus sale contract,
relying on certain contractual language related to consumer
credit issues.
In September 2005, Bank of America filed a motion to strike
Bellik's third-party complaint pursuant to section 2-615 of the
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Code (735 ILCS 5/2-615 (West 2004)), arguing that none of
Bellik's claims properly constituted a third-party claim under
section 2-406(b) of the Code (735 ILCS 5/2-406(b) (West 2004)).
Bank of America further argued that, assuming Bellik's claims
properly constituted third-party claims, they should be stricken
as legally insufficient. Bank of America also asserted that
Bellik's claims against it should be dismissed with prejudice
because they failed on their merits as a matter of law.
In November 2005, Bellik filed a response to Bank of
America's motion to dismiss, arguing that his complaint was
properly filed as a third-party complaint and that his claims
were legally sufficient.
In January 2006, the circuit court granted Bank of America's
motion to dismiss Bellik's third-party complaint and dismissed it
with prejudice as to Bank of America only. The court adopted the
reasoning set forth in Bank of America's motion to strike.
In February 2006, Bellik filed a motion to reconsider the
circuit court's January 2006 decision, primarily challenging the
circuit court's dismissal with prejudice, and requesting the
circuit court to either reverse its decision and permit an
amendment of the pleadings or a refiling of a direct action
against Bank of America.
In March 2006, the circuit court denied Bellik's motion to
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reconsider.
Subsequently, also in March 2006, Bellik appealed the
circuit court's January 2006 order and its denial of his motion
to reconsider.
ANALYSIS
On appeal, Bellik challenges the circuit court's order that
granted Bank of America's section 2-615 motion to dismiss his
complaint with prejudice. Specifically, Bellik asserts that "the
third party complaint was sufficient and proper, as the subject
matter of the third party complaint arose from the same
transaction as the original complaint." Bellik also asserts that
he, as a consumer, "can maintain an action against an assignee
for sums paid pursuant to the holder in due course provisions of
the retail installment contract" for the Stratus (hereinafter
referred to as the Federal Trade Commission (FTC) Holder
Notice).4 Last, Bellik asserts that the circuit court's
dismissal with prejudice constituted error where the alleged
defect could be cured by amendment.
A. Section 2-615 Motion to Dismiss
We review de novo the circuit court's decision to dismiss
plaintiff's complaint pursuant to a section 2-615 motion (735
4
In specific regard to the FTC, Bellik claims that "due to
the Federal Trade Commission language, the Bank effectively
'inherits' Midlothian's wrongdoing."
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ILCS 5/2-615 (West 2004). Marshall v. Burger King Corp., 222
Ill. 2d 422, 429 (2006). A section 2-615 motion challenges the
legal sufficiency of a complaint based on defects apparent on its
face. Marshall, 222 Ill. 2d at 429. When reviewing the
complaint, we accept as true all well-pleaded facts and all
reasonable inferences that may be drawn from those facts, and
construe the allegations contained in the complaint in the light
most favorable to the plaintiff. Marshall, 222 Ill. 2d at 429.
Ultimately, a dismissal pursuant to a section 2-615 motion should
be granted only where it is clearly apparent that no set of facts
can be proved that would entitle the plaintiff to recovery.
Marshall, 222 Ill. 2d at 429. Thus, in this case, we must
analyze the legal sufficiency of Bellik's third-party complaint
against Bank America.
A third-party action is a procedural device that allows a
defendant to bring a cause of action against a party who was not
joined in the original action. Guzman v. C.R. Epperson
Construction, Inc., 196 Ill. 2d 391, 399 (2001). Section 2-
406(b) of the Code allows the filing, by a defendant, of a third-
party complaint against a nonparty "who is or may be liable to
[the defendant] for all or part of the plaintiff's claim against
[that defendant]." 735 ILCS 5/2-406(b) (West 2004).
Therefore, the majority of third-party complaints rely on
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claims for indemnification or contribution because third-party
actions "require that the party seeking relief assert a claim of
derivative liability." Guzman, 196 Ill. 2d at 399. In the
context of third-party actions, derivative liability is "'where
the liability of the third-party defendant is dependent on the
liability of the third-party plaintiff to the original
plaintiff.'" Perry v. Minor, 319 Ill. App. 3d 703, 709 (2001),
quoting Board of Trustees of Community College, District No. 508
v. Coopers & Lybrand LLP, 296 Ill. App. 3d 538, 549 (1998).
Here, Harris Bank (the original plaintiff) brought suit
against Bellik seeking a default judgment based on a contract
related to Bellik's purchase of the Dakota. However, Bellik's
third-party complaint against Bank of America is based on an
entirely separate and distinct contract and transaction, namely,
the Stratus sales contract. In fact, as defendant concedes in
his brief, Bank of America was not a party to the contract for
sale of the Dakota.5 Consequently, Bank of America cannot be
found liable for any of Harris Bank's claims against Bellik based
on that contract. See 735 ILCS 5/2-406(b) (West 2004).
Moreover, the Stratus sales contract upon which Bellik
5
In his brief, Bellik states "[t]he original complaint was a
suit for a nonpayment of an installment note pursuant to a
purchase of an automobile, through Midlothian Dodge [sic] prior
to the involvement of the [sic] Bank of America." (Emphasis
added.)
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relies in his third-party complaint is silent regarding the
Dakota contract at issue in the underlying Harris Bank
litigation. Although the Stratus sales contract indisputably
references the Dakota as a trade-in vehicle, it does not impose
any contractual duties or obligations on Bank of America to pay
off the lien owed by Bellik on that Dakota. In addition, as
Bellik acknowledges in his brief, Bellik's third party-complaint
did not expressly seek indemnification or contribution from Bank
of America for Harris Bank's deficiency judgment of $9,846.23.6
See Guzman, 196 Ill. 2d at 399. Simply put, "third-party actions
cannot be used to maintain an entirely separate and independent
claim against a third party, even if it arises out of the same
general set of facts as the main claim." People v. Brockman, 143
Ill. 2d 351, 364-65 (1991).
Furthermore, contrary to Bellik's position that Bank of
America, as an assignee of the Stratus sales contract, "inherits"
the alleged wrongdoing of Gorman (the car dealer) because of the
FTC Holder Notice language in the Stratus contract, our supreme
court has recognized that the FTC Holder Notice, which is
required in all consumer credit contracts, "only permits
6
In his brief, Bellik states that "[w]hile [he] may not have
used the magic word 'contribution' or 'indemnity' in his
pleading, the offset which is sought is clearly implied and at
the very least if this language was an important issue, leave to
amend should have been granted."
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affirmative actions against assignees where the seller's breach
is so substantial that rescission is warranted." Jackson v.
South Holland Dodge, Inc., 197 Ill. 2d 39, 54-55 (2001)
(discussing FTC commentary on the FTC Holder Notice). Here,
Bellik does not contend that rescission is warranted and thus
cannot maintain an affirmative action against Bank of America by
relying on the FTC Holder Notice. Furthermore, the central role
of the FTC Holder Notice is to confirm "the right of buyers to
withhold payment from sellers or assignees, if it becomes
apparent that the car purchased is a lemon." Jackson, 197 Ill.
2d at 54. Such is not the situation presented in this case.
Accordingly, we find that the circuit court correctly
granted Bank of America's motion to dismiss Bellik's third-party
complaint because Bank of America was not a party to the contract
that forms the basis of the original litigation, and the FTC
Holder Notice does not permit an affirmative action against Bank
of America, as an assignee, under the circumstances here.
Defendant's reliance on our decision in Felde v. Chrysler
Credit Corp., 219 Ill. App. 3d 530 (1991), is misplaced. Most
notably, in Felde, the plaintiffs expressly requested
cancellation and revocation of the retail installment contract at
issue, based upon defects in an automobile they had purchased
pursuant to that contract. Felde, 219 Ill. App. 3d at 533.
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Here, in contrast, Bellik did not request the cancellation of the
contract at issue, nor did he allege that his vehicle was
defective.
We decline Bellik's request to impose a duty on Bank of
America, as an assignee of a retail installment contract for the
sale of an automobile, to "make at least a threshold inquiry as
to whether the terms of the agreement have been fully performed
prior to accepting such assignments." As Bellik concedes, there
is no relevant authority for such a proposition, and we therefore
conclude that imposition of such a duty would more properly be
addressed by the legislature. See, e.g., City of Chicago v.
Holland, 206 Ill. 2d 480, 489 (2003) (recognizing that "the
General Assembly is free to enact any legislation that the
constitution does not expressly prohibit").
B. Dismissal with Prejudice
Last, Bellik argues that the circuit court erred in
dismissing his third-party complaint with prejudice, contending
that he "was precluded from filing an amended pleading, and,
since the dismissal was with prejudice, the direct filing of an
action against Bank of America." Bellik argues that he should
have been granted an opportunity to amend his complaint.
A circuit court may properly dismiss a complaint with
prejudice under section 2-615 of the Code where it is clearly
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apparent that the plaintiff can prove no set of facts that
entitles them to recovery, and we review de novo the court's
decision in that regard. Schiller v. Mitchell, 357 Ill. App. 3d
435, 438-39 (2005). Ordinarily, the circuit court should give a
plaintiff at least one opportunity to cure the defects in his or
her complaint. Schiller, 357 Ill. App. 3d at 453.
Here, contrary to Bellik's claims on appeal, he never
articulated to the circuit court any potential amendments to his
third-party complaint prior to its dismissal. Instead, after the
circuit court dismissed his complaint, Bellik filed a motion to
reconsider, urging the circuit court to either reverse its
decision and allow him to replead or modify its decision from a
dismissal with prejudice to a dismissal without prejudice.
However, Bellik proposed no amendments to his complaint that
would prevent its dismissal. In light of our determination that
Bellik's third-party complaint was properly dismissed by the
circuit court pursuant to section 2-615 of the Code, and Bellik
offered no potential amendments to his original complaint to cure
its defects, we find that the circuit court did not abuse its
discretion when it dismissed his complaint with prejudice.
CONCLUSION
For the foregoing reasons, we affirm the judgement of the
circuit court.
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Affirmed.
FITZGERALD-SMITH, P.J., and JOSEPH GORDON, J., concur.
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