Hill v. PS Illinois Trust ( 2006 )

SECOND DIVISION
September 26, 2006
No. 1-05-4000
THEO HILL, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
PS ILLINOIS TRUST, ) Honorable
) Sophia Hall,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
The storage facility sold off plaintiff=s property because his rent payments were
overdue. That sale gives rise to the plaintiff=s constitutional and statutory claims we
address in this appeal.
Plaintiff Theo Hill filed a class action lawsuit against defendant PS Illinois Trust
(PS), alleging the Illinois Self-Storage Facility Act (Storage Act) (770 ILCS 95/1 et. seq.
(West 2004)) violated the due process clause of the Illinois Constitution (Ill. Const.
1970, art. I, ' 2). Plaintiff also alleged on his own behalf that PS=s actions in conducting
a lien sale under the Storage Act were Aunfair and deceptive@ under the Illinois
Consumer Fraud and Deceptive Business Practices Act (CFA) (815 ILCS 505/2 (West
2004)).
PS moved to dismiss plaintiff=s case pursuant to section 2-615 of the Illinois Code
of Civil Procedure (Code) (735 ILCS 2-615 (West 2004)). The trial court granted PS=s
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motion.
On appeal, plaintiff contends the trial court erred when it determined he failed to
allege the requisite state action necessary to support a claim under the Illinois due
process clause, and that he failed to state a claim under the CFA. We affirm in part and
reverse and remand in part.
FACTS
The pleadings reveal the facts relevant to this appeal. On August 5, 2003,
defendant entered into a contract with PS for the rental of a storage locker in order to
store his personal property. Plaintiff made his monthly payments for August and
September. On October 17, 2003, plaintiff called PS=s storage facility to inform it that he
would be late with October=s rent payment, but would make the payment later in the
week. Plaintiff was told his account was past due, but was not told his property would
be auctioned off if payment was not made.
Plaintiff was unable to make the October and November rental payments. On
December 5, 2003, plaintiff called PS to check the balance on his account and arrange
payment. Plaintiff was told his belongings were auctioned off on November 25, 2003.
Plaintiff=s personal property was worth in excess of $25,000. According to plaintiff, he
never received notice that PS would be auctioning off his property in order to enforce a
lien created under section 3 of the Storage Act. 770 ILCS 95/3 (West 2004).
On January 26, 2005, plaintiff called PS to demand the return of any balance
remaining from the lien sale, as required by section 4(j) of the Storage Act. 770 ILCS
95/4(j) (West 2004). A representative of PS told plaintiff AI have no idea what you are
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talking about.@ On February 9, 2005, plaintiff faxed PS a letter demanding the return of
any balance remaining. PS never responded to the letter.
Plaintiff filed a two-count complaint against PS in the circuit court of Cook
County. In Count I, plaintiff sought, on behalf of himself and a putative class of PS
customers, a declaratory judgment that the Storage Act was unconstitutional Aon its face
and as applied@ because it failed to provide adequate notice. In Count II, plaintiff
alleged on his own behalf that PS, in violation of the CFA, engaged in unfair and
deceptive conduct when it sold his property.
PS moved to dismiss the complaint pursuant to section 2-615 of the Code. PS
contended: (1) plaintiff failed to allege the requisite state action necessary to support a
claim under the due process clause of the Illinois State Constitution; and (2) plaintiff
failed to allege any facts that would constitute an unfair act in violation of the CFA. The
trial court dismissed Count I and gave plaintiff time to amend his claim under the CFA.
Defendant then filed a motion to amend his complaint. The trial court denied plaintiff=s
motion to amend and dismissed the case with prejudice. Plaintiff appealed the
dismissal of the CFA and declaratory judgment claims, but did not appeal from the trial
court=s refusal to allow him to amend his complaint, nor did he appeal dismissal of his
conversion claim.
DECISION
A section 2-615 motion to dismiss challenges only the legal sufficiency of the
complaint. 735 ILCS 5/2-615 (West 2004); Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d
81, 85, 773 N.E.2d 641 (2002). The central inquiry is whether the allegations of the
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complaint, when considered in the light most favorable to the plaintiff, are sufficient to
state a cause of action relief may be granted on. Jarvis, 201 Ill. 2d at 86; Connick v.
Suzuki Motor Co., 174 Ill. 2d 482, 490, 675, N.E.2d 584 (1996). We review de novo the
dismissal of a complaint under section 2-615 of the Code. Jarvis, 201 Ill. 2d at 86.
I. Due Process
Plaintiff contends the trial court erred when it determined he failed to allege the
requisite state action necessary to support a claim under the Illinois due process clause.
Initially, we note plaintiff has not indicated he complied with Supreme Court Rule
19 (134 Ill. 2d R. 19), which requires a litigant challenging the constitutionality of a
statute, ordinance, or administrative regulation to serve notice of the challenge upon the
Attorney General or other affected agency or officer. While we recognize the failure of a
litigant to strictly comply with the rule may result in forfeiture, our Supreme Court has
concluded that Aa party=s failure to comply with Rule 19 does not deprive the court of
jurisdiction to consider the constitutional issue.@ Village of Lake Villa v. Stokovich, 211
Ill. 2d 106, 119, 810 N.E.2d 13 (2004); Serafin v. Seith, 284 Ill. App. 3d 577, 672 N.E.2d
302 (1996) (A[m]oreover, even if the issue were not waived, we believe that [plaintiff=s]
constitutional arguments are without merit.@) We will decide the issue, although its
ripeness for consideration is dubious.
To assert a violation of the Illinois due process clause, a plaintiff must allege a
state action deprived him of a protected right, privilege, or immunity. In re Adoption of
L.T.M., 214 Ill. 2d 60, 73, 824 N.E.2d 221 (2005); USA I Lehndroff
Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc., 64 Ill. 2d 11, 15-16, 348
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N.E.2d 831 (1976). The Illinois due process clause stands Aas a prohibition against
governmental action, not action by private individuals.@ Methodist Medical Center of
Illinois v. Taylor, 104 Ill. App. 3d 713, 717, 489 N.E.2d 351 (1986).
Plaintiff contends state action was properly alleged in this case because the
State of Illinois Aauthorized@ PS, under section 4 of the Act, to violate his constitutional
rights by selling his property without due process. See 770 ILCS 95/4 (West 2004).
Plaintiff contends there are three distinct tests for determining whether there is state
action. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 621-22, 111 S. Ct.
2077, 2083, 114 L. Ed. 2d 660, 674 (1991). Plaintiff contends the third test, the Astate
authorization model,@ applies in this case because the Storage Act specifically
authorized PS to conduct the lien sale.
In response, PS contends plaintiff=s failure to attribute state action to PS=s
decision to sell his goods is fatal to his due process claim. Defendant contends section
4 of the Act permitted, but did not compel, PS to sell plaintiff=s belongings. See 770
ILCS 95/3 (West 2004). PS contends merely permitting a private actor to make such a
choice cannot support a finding of state action.
When appropriate, the Illinois Supreme Court has interpreted our state due
process clause to provide greater protections than its federal counterpart. Lewis E. v.
Spagnolo, 186 Ill. 2d 198, 227, 710 N.E.2d 798 (1999) ANonetheless, federal precedent
interpreting the federal due process clause is useful as a guide in interpreting the Illinois
provision.@ Spagnolo, 186 Ill. 2d at 227.
To support his contention, plaintiff relies on three United States Supreme Court
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decisions: Edmonson, 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 2077; Shelley v.
Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948); and Reitman v. Mulkey, 387
U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967).
In Edmonson, the Court noted that Ain determining whether a particular action or
course of conduct is governmental in character, it is relevant to examine the following:
the extent to which the actor relies on governmental assistance and benefits; whether
the actor is performing a traditional governmental function; and whether the injury
caused is aggravated in a unique way by the incidents of governmental authority.@
(Citations Omitted.) Edmonson, 500 U.S. at 621-22, 111 S. Ct. at 2083, 114 L. Ed. 2d at
674. However, the Court also noted that A[a]lthough private use of state-sanctioned
private remedies or procedures does not rise, by itself, to the level of state action, our
cases have found state action when private parties make extensive use of state
procedures with >overt, significant assistance of state officials.= @ (Citations omitted.)
Edmonson, 500 U.S. at 622, 111 S. Ct. at 2083, 114 L. Ed. 2d at 674.
In Shelly, the Court concluded restrictive racial covenant agreements, standing
alone, could not be regarded as a violation of any rights guaranteed by the Fourteenth
Amendment. ASo long as the purposes of those agreements are effectuated by
voluntary adherence to their terms, it would appear clear that there has been no action
by the State.@ Shelly, 334 U.S. at 13, 68 S. Ct. at 842, 92 L. Ed. at 1180. When the
restrictive terms and purposes of the agreements were judicially enforced in state
courts, however, sufficient state action was present to bring them under the purview of
the Fourteenth Amendment. Shelly, 334 U.S. at 13-15, 68 S. Ct. at 842, 92 L.Ed. at
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1180.
Finally, in Reitman, the U.S. Supreme Court held a California statute not only
repealed an existing law forbidding private racial discriminations, but Awas intended to
authorize, and does authorize, racial discrimination in the housing market.@ The
California Supreme Court held the statute would significantly encourage and involve the
State in private discrimination. After analyzing the decision, the Court found it had not
been presented with any persuasive considerations indicating the California judgment
should be overturned. Reitman, 387 U.S. at 381, 87 S. Ct. at 838, 18 L. Ed. 2d at 1634.
By contrast, in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 151, 98 S. Ct. 1729,
1731, 56 L. Ed. 2d 185, 190 (1978), a case similar to the instant action, the Court
considered whether a warehouseman=s proposed sale of goods entrusted to him for
storage in order to collect overdue storage fees, as permitted by a New York statute,
was an action properly attributable to the State of New York. Plaintiff initiated a class
action in federal district court under section 1983 of the United States Code (42 U.S.C. '
1983), seeking damages, an injunction against the threatened sale of her belongings,
and a declaration that such a sale pursuant to the New York statute would violate the
Due Process and Equal Protection Clauses of the Fourteenth Amendment. In order to
establish a section 1983 claim, plaintiff was required to show: (1) she was deprived of a
right Asecured by the Constitution and the laws of the United States;@ and (2) Flagg
Brothers deprived her of this right acting Aunder color of any statute of the State of New
York.@ 436 U.S. at 155, 98 S. Ct. at 1733, 56 L. Ed. 2d at 192.
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The Court held the New York statute had done nothing more than Aauthorize (and
indeed limit)--without participation by any public official--what Flagg Brothers would tend
to do, even in the absence of such authorization, i.e., dispose of respondents= property
in order to free up its valuable storage space.@ The proposed sale pursuant to the lien
was not a significant departure from traditional private arrangements. Flagg Brothers,
436 U.S. at 163, 98 S. Ct. at 1737, 56 L. Ed. 2d at 197. The Atotal absence of overt
official involvement@ distinguished the case from earlier decisions imposing procedural
restrictions on creditors= remedies. Flagg Brothers, 436 U.S. at 157, 98 S. Ct. at 1734,
56 L. Ed. 2d at 194.
Notwithstanding, the plaintiffs contended Flagg Brothers= proposed action under
the statute was properly attributable to the State because Athe State has authorized and
encouraged it@ by enacting the statute. Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at
1737, 56 L. Ed. 2d at 198. Rejecting the plaintiffs= contention, the Court held its cases
reflect that a State is responsible for the act of a private party only A 'when the State, by
its law, has compelled the act.' @ Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56
L. Ed. 2d at 198, quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S. Ct. 1598,
1615, 26 L. Ed. 2d 142, 161-62 (1970). The Court noted it had Anever held that a State=s
mere acquiescence in a private action converts that action into that of the State.@ Flagg
Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56 L. Ed. 2d at 198. Flagg Brothers= actions
pursuant to the statute, without something more, were not sufficient to justify
characterizing Flagg Brothers as a state actor. The Court did not directly or indirectly
limit its decision to section 1983 cases.
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Plaintiff contends Flagg Brothers is inapplicable here because the plaintiff in that
case sought to hold individuals personally liable under section 1983 of the United States
Code, rather than simply seeking to declare the New York statute unconstitutional.
Plaintiff contends the issue of whether a defendant is a state actor is not relevant in an
action seeking only to declare a state statute unconstitutional.
Contrary to plaintiff=s contention, however, the United States Supreme Court has
noted: AIn cases under ' 1983, >under color= of law has consistently been treated as the
same thing as the >state action= required under the Fourteenth Amendment.@ Lugar v.
Edmondson Oil Co., 457 U.S. 922, 928, 102 S. Ct 2744, 2749, 73 L. Ed. 2d 482, 489
(1982), quoting United States v. Price, 383 U.S. 787, 794, n. 7, 86 S. Ct. 1152, 1157, 16
L. Ed. 2d 267, 272 (1966).
For example, in American Manufacturers Mutual Insurance Co. v. Sullivan, 526
U.S. 40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143 (1990), the plaintiffs, hoping to
avoid the traditional application of the Court=s section 1983 state-action cases,
characterized their claim as a Afacial@ or Adirect@ challenge to the procedures contained
in the statute. The plaintiffs contended the Court need not concern itself with the
Aidentity of the defendant@ or the Aact or decision by a private actor or entity who is
relying on the challenged law.@ Sullivan, 526 U.S. at 50, 119 S. Ct. at 985, 143 L. Ed. 2d
at 143. The Court held the argument ignored its repeated insistence that state action
requires:
Aboth an alleged constitutional deprivation >caused by the
exercise of some right or privilege created by the State or by
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a rule of conduct imposed by the State or by a person for
whom the State is responsible,= and that >the party charged
with the deprivation must be a person who may fairly be said
to be a state actor.= @ (Emphasis in original.) Sullivan, 526
U.S. at 50, 119 S. Ct. at 985, 143 L. Ed. 2d at 143, quoting
Lugar, 457 U.S. at 937, 102 S. Ct. at 2753, 73 L. Ed. 2d at
495.
The Court noted that in cases involving extensive state regulation of private
activity, Awe have consistently held that >[t]he mere fact that a business is subject to
state regulation does not by itself convert its action into that of the State for purposes of
the Fourteenth Amendment.= @ Sullivan, 526 U.S. at 52, 119 S. Ct. at 986, 143 L. Ed. 2d
at 144-45, quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S. Ct.
449, 453-54, 42 L. Ed. 2d 477, 484 (1974). A private actor will not be held to
constitutional standards unless A >there is a sufficiently close nexus between the State
and the challenged action of the regulated entity so that the action of the latter may be
fairly treated as that of the State itself.= @ Sullivan, 419 U.S. at 52, 119 S. Ct. at 986,
143 L.Ed.2d at 144-45, quoting Jackson, 419 U.S. at 350, 95 S. Ct. at 453-54, 42
L. Ed. 2d at 484.
Whether such a Aclose nexus@ exists depends on whether the State exercised
coercive power or provided such significant encouragement, either overt or covert, that
the choice must be deemed to be that of the State. Sullivan, 419 U.S. at 52, 119 S. Ct.
at 986, 143 L.Ed.2d at 144-45; Jackson, 419 U.S. at 350, 95 S. Ct. at 453-54, 42
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L.Ed.2d at 484. AAction taken by private entities with the mere approval or
acquiescence of the State is not state action.@ Sullivan, 419 U.S. at 52, 119 S. Ct. at
986, 143 L.Ed.2d at 144-45.
The dividing line we seek to apply in this case was clearly drawn by the U.S.
Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478,
108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). There, the question was whether a provision
of Oklahoma=s probate laws requiring contract claims against an estate be presented
within a specified time period violated the Due Process Clause.
The issue was whether state action wrongfully deprived a creditor of its property
rights. Citing Flagg Brothers, the Court observed: APrivate use of state-sanctioned
private remedies or procedures does not rise to the level of state action.@ Tulsa
Professional Collection Services, Inc., 485 U.S. at 485, 108 S. Ct. at 1345, 99 L. Ed. 2d
at 575. ABut,@ the Court continued, Awhen private parties make use of state procedures
with the overt, significant assistance of state officials, state action may be found.@ Tulsa
Professional Collection Services, Inc., 485 U.S. at 486, 108 S. Ct. at 1345, 99 L. Ed. 2d
at 576.
The Court found significant state action because the probate court was
Aintimately involved throughout, and without that involvement the time bar is never
activated.@ Tulsa Professional Collection Services, Inc., 485 U.S. at 487, 108 S. Ct. at
1346, 99 L. Ed. 2d at 576. In the case before us, there was no significant state action by
a court or by any other state official.
Similarly, the Illinois Supreme Court considered whether the Illinois distress for
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rent provisions (Ill. Rev. Stat. 1973, ch. 80, pars. 16-34) were unconstitutional in
Cousins Club, Inc., 64 Ill. 2d 11. Under the distress for rent provisions, the actual
distraint was accomplished by the acts of the lessor; no State action was involved in the
procedure. The court noted:
AThere are numerous holdings that when a creditor exercises
his self-help remedy to repossess personal property as
authorized under section 9-503 of the Uniform Commercial
Code (Ill. Rev. Stat. 1973, ch. 26, par. 9-503) or under
similar statutes, there is no State action involved so far as
the question of due process is concerned.@ Cousins Club,
Inc., 64 Ill. 2d at 15.
The question was not simply whether state action was involved, but rather
whether the role of the State was Asufficiently significant, constitutionally speaking, so
that one may invoke the protection afforded by the due process clause.@ Cousins Club,
Inc., 64 Ill. 2d at 18. The court held the State was not Asignificantly involved, where, as
here, the lessor takes possession of his tenant=s property pursuant to a statute that
simply codifies the lessor=s common law right to do this and that does not have the
State carry out the lessor=s rights.@ Cousins Club, Inc., 64 Ill. 2d at 16.
In an attempt to circumvent the holdings in Flagg Brothers, Sullivan, and Cousins
Club, Inc., plaintiff contends the United States Supreme Court Aunequivocally@ held in
Lugar that: AWhile private misuse of a state statute does not describe conduct that can
be attributed to the State, the procedural scheme created by the statute obviously is the
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product of state action.@ (Emphasis Added.) Lugar, 457 U.S. at 941, 102 S. Ct. at
2756, 73 L. Ed. 2d at 498. Plaintiff, however, ignores the Lugar Court=s determination
that a state statute Ais subject to constitutional restraint and properly may be addressed
in a ' 1983 action, if the second element of the state-action requirement is met as well.@
(Emphasis added.) Lugar, 457 U.S. at 941, 102 S. Ct. at 2756, 73 L. Ed. 2d at 498. The
second element is whether, under the facts of the case, a private party may be
appropriately characterized as a state actor. Lugar, 457 U.S. at 939, 102 S. Ct. at
2754-55, 73 L. Ed. 2d at 496-97.
In this case, there is no question plaintiff=s deprivation of property resulted from
the exercise of a right or privilege having its source in state authority, i.e., the lien sale
conducted pursuant to section 4 of the Storage Act. See 770 ILCS 95/4 (West 2004).
Therefore, the question becomes whether PS may be appropriately characterized as a
Astate actor.@ See Sullivan, 419 U.S. at 50, 119 S. Ct. at 985, 143 L.Ed.2d at 143;
Lugar, 457 U.S. at 939, 102 S. Ct. at 2754-55, 73 L. Ed. 2d at 496-97.
Similar to the statutes in Flagg Brothers and Sullivan, the Storage Act authorized,
but did not require or compel, PS to sell plaintiff=s personal property stored at the facility
in order to satisfy a lien for past due rent. Besides establishing the right to a lien and
providing a self-help remedy by enacting the Storage Act, the State was not significantly
involved in the seizure and sale of plaintiff=s property. See Cousins Club, Inc., 64 Ill. 2d
at 16.
While we recognize the State=s decision to provide storage facility owners the
option of conducting a lien sale can be seen as encouragement to do just that, Athis kind
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of subtle encouragement is no more significant than that which inheres in the State=s
creation or modification of any legal remedy.@ See Sullivan, 526 U.S. at 53, 119 S. Ct.
at 986, 143 L. Ed. 2d at 146. Because the State did not compel, assist in, or significantly
encourage the seizure and sale of plaintiff=s property, we find PS=s actions did not
amount to Astate action.@ See Sullivan, 526 U.S. at 53, 119 S. Ct. at 986, 143 L. Ed. 2d
at 146; Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56 L. Ed. 2d at 198.
We therefore conclude the trial court did not err in dismissing Count I of plaintiff=s
complaint.
II. Consumer Fraud
Plaintiff contends the trial court erred in dismissing Count II of his complaint
because he adequately stated a cause of action under the unfair conduct prong of the
Illinois Consumer Fraud Act.
The CFA is Aa regulatory and remedial statute intended to protect consumers,
borrowers, and business people against fraud, unfair methods of competition, and other
unfair and deceptive business practices.@ Robinson v. Toyota Motor Credit Corp., 201
Ill. 2d 403, 419, 775 N.E.2d 951 (2002). A complaint raising a claim under the CFA
Amust state with particularity and specificity the deceptive manner of defendant=s acts or
practices, and the failure to make such averments requires the dismissal of the
complaint. Robinson, 201 Ill. 2d at 419; Connick v. Suzuki Motor Co., 174 Ill. 2d 482,
502, 675 N.E.2d 584 (1996).
Unfair or deceptive acts or practices are described in the CFA as:
Aincluding but not limited to the use or employment of any
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deception, fraud, false pretense, false promise,
misrepresentation or the concealment, suppression or
omission of any material fact, with intent that others rely
upon the concealment, suppression or omission of such
material fact.@ 815 ILCS 505/2 (West 2004).
A plaintiff may allege that conduct is unfair under the CFA without alleging that
the conduct is deceptive. Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d
307, 313, 662 N.E.2d 602 (1996). In determining whether conduct is unfair, the CFA
mandates consideration Abe given to the interpretations of the Federal Trade
Commission and the federal courts relating to Section 5(a) of the Federal Trade
Commission Act.@ 815 ILCS 505/2 (West 2004). In Federal Trade Comm=n v. Sperry,
405 U.S. 233, 244 n.5, 92 S. Ct. 898, 905, 31 L. Ed. 2d 170, 178 (1972), the United
States Supreme Court set out the requirements for establishing unfair conduct: (1)
whether the practice offends public policy; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; and (3) whether it causes consumers substantial injury.
See also Saunders, 278 Ill. App. 3d at 313 (Athe defendant=s conduct must violate public
policy, be so oppressive as to leave the consumer with little alternative but to submit,
and injure the consumer.@)
In dismissing Count II of the complaint, the trial court found: APlaintiff fails to
allege that [PS] did not comply with the provisions of the Self Storage Facilities Act;
therefore, Plaintiff fails to allege facts that constitute a violation of the act on any basis,
let alone unfairness.@
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Plaintiff=s complaint, however, alleged PS violated the CFA=s prohibition against
unfair practices by failing to provide plaintiff with any form of statutorily-required notice
that his property was being sold. Plaintiff specifically alleged that he Anever received
notice, either by telephone, in-person delivery or certified mail, that [PS] would be
seeking to enforce the lien created in its favor,@ as Arequired both by the Act itelfB-see
770 ILCS 95/4(A)(C)B-and by the express terms of the rental agreement Plaintiff
signed.@ Plaintiff also alleged PS engaged in unfair conduct by: failing to inform him of
the outcome of the lien sale, or even acknowledge that it was statutorily required to
return any surplus from such sale to plaintiff on demand; selling his personal property
without allowing him the opportunity to exercise his statutory right to redeem the
property; and failing to return to him any funds recouped from the sale of goods over
and above the lien amount after defendant made a demand for the surplus.
Furthermore, plaintiff alleged PS=s conduct offended Illinois public policy, as
embodied in the Storage Act; was unethical and oppressive because it was contrary to
well-established industry practices and afforded him no reasonable opportunity to avoid
the lien sale; and significantly harmed him because he lost nearly all of his possessions,
including items of inestimable personal and sentimental value.
After reviewing the allegations contained in Count II of the complaint, taking them
as true, we find they were sufficient to state a cause of action under the CFA for unfair
conduct.
We therefore conclude the trial court erred in dismissing Count II of plaintiff=s
complaint.
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CONCLUSION
We affirm the trial court=s dismissal of Count I of plaintiff=s complaint. We reverse
the trial court=s dismissal of Count II of plaintiff=s complaint and remand for further
proceedings.
Affirmed in part; reversed and remanded in part.
HOFFMAN, and SOUTH, JJ., concur.
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