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Table of Contents
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Chapter 1 — Collection Checklist - I. [1.1] In General
- II. [1.2] Adherence to the Fair Debt Collection Practices Act
- III. [1.3] State Licensing Requirements
- IV. [1.4] Internal Practices Are Key to Understanding How the Collection Agency Act Applies
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V. Calculation of Interest: Two Different Holdings - VI. [1.7] Municipal Licensing Requirements
- VII. [1.8] Supreme Court Rule 138
- VIII. [1.9] Supreme Court Rule 280
- IX. [1.16] Venue
- X. [1.17] Compliance Is the New Collection
- Chapter 2 — Theories of Liability
- I. [2.1] Breach of Contract
- [2.2] Garber v. Harris Trust & Savings Bank and Its Progeny
- [2.3] Coming to Terms with Cardholder Agreements
- [2.4] Why Can Credit Card Issuers Change Their Terms?
- [2.5] Can Changes Be Retroactive as Well as Prospective?
- [2.6] Razor Capital v. Antaal
- [2.7] Pleading Standards
- [2.8] How Many Sets of Terms Should Be Pleaded or Attached?
- [2.9] Summary
- [2.10] An Inconvenient Truth: Who Needs Signatures?
- [2.11] Illinois’ Electronic Commerce Security Act
- [2.12] Summary
- II. [2.13] Alternative Theory of Liability: Account Stated
- [2.14] Historical Pedigree of Account Stated
- [2.15] Account Stated in Illinois
- [2.16] No Contract Required
- [2.17] A Signed Agreement Is Not Required
- [2.18] Toth v. Mansell
- [2.19] Motive Parts Company of America, Inc. v. Robinson Disassembled
- [2.20] A Written Contract Renders Account Stated Superfluous
- [2.21] Anything Goes as an Underlying Obligation
- [2.22] Itemization Not Required
- [2.23] Reasonable Time Requirement
- [2.24] Scholarly Support
- [2.25] Does It Apply to Credit Cards?
- [2.26] Summary
- Chapter 3 — Assignments
- I. [3.1] Assignments of Title
- II. [3.7] Illinois Has Always Permitted Assignments for Collection
- III. [3.8] Illinois Later Allowed Assignment of Nonnegotiable Choses To Confer Marketable Title (Assignee and Owner)
- IV. [3.9] Illinois’ Collection Agency Act: Assignments for Collection Under Present Illinois Law
- [3.10] The Purpose of a Written Assignment
- [3.11] Illinois State Court Rulings on the Collection Agency Act and Legislative Amendments
- [3.12] Business Service Bureau, Inc. v. Webster
- [3.13] Unifund CCR Partners v. Shah I
- [3.14] Unifund CCR Partners v. Shah II
- [3.15] The Federal Circuit Rulings on the Collection Agency Act
- [3.16] Grant-Hall v. Cavalry Portfolio Services I and II
- [3.17] Galvan v. NCO Financial Systems, Inc.
- [3.18] Constitutional Considerations: Equal Protection
- V. [3.19] Assignments of Ownership (Marketable Title)
- VI. [3.20] Assignee Rights
- Chapter 4 — Small Claims Pleading Requirements: Notice Pleading
- Chapter 5 — Defending Against Motions To Dismiss
- I. [5.1] Motions Under 735 ILCS 5/2-615
- [5.2] Requests for Dismissals with Prejudice
- Dismissals for Failing To Prove the Case in the Pleadings — 735 ILCS 5/2-606
- [5.3] Disproving the Existence of a Hypothetical Written Contract
- [5.4] Illinois Presumes a Contract Is Unwritten Unless the Complaint States It Is Written
- [5.5] Writings Are Not the Contract, but Evidence of an Unwritten Contract
- [5.6] Understanding the Documents
- [5.7] Defending Motions To Dismiss on Issues of Assignment
- [5.8] Bleeding Edge of Pleading Practice
- [5.9] Non-Ruling: Standing and Assignments
- [5.10] Mechanics Liens Are Not Assigned Pursuant to 735 ILCS 5/2-403
- [5.11] Rickety Factual Foundation
- [5.12] Contract and Not a Contract: Assignments in Context
- II. Motions To Dismiss Based on 735 ILCS 5/2-606
- [5.13] Quixotic Quandary
- [5.14] Pleading Principles: Plead Does Not Mean Prove
- [5.15] Unwritten Contract? Prove It!
- [5.16] False Presumption 1: Illinois Law Presumes Contracts Are Written
- [5.17] False Presumption 2: Writings Are the Contract, Not Evidence of an Unwritten Contract
- [5.18] False Presumption 3: Attaching Evidence Transmutes a Claim to a Breach of Written Contract
- [5.19] False Presumption 4: Victory Without Doubt
- III. Credit Card Liability Act
- Chapter 6 — Case-Specific Motions To Dismiss
- I. [6.1] Velocity Investments, LLC v. Alston — Still Misunderstood
- [6.2] The Facts and the Holding
- Limits of the Holding
- [6.3] Velocity Is Applicable to Its Facts Only
- [6.4] Velocity Is Not Applicable in Small Claims
- [6.5] Velocity Does Not Mention Garber v. Harris Trust & Savings Bank
- [6.6] Velocity’s Use of Ramirez v. Palisades Collection LLC; Parkis v. Arrow Financial Services, LLC; and Portfolio Acquisitions, L.L.C. v. Feltman Is Consistent
- [6.7] Velocity Is Not Applicable to Account Stated Theory of Liability
- II. [6.8] Terminal Velocity: Razor Capital v. Antaal
- [6.9] The Facts
- [6.10] The Holding
- [6.11] Credit Card Complaints Fail To Comply with 735 ILCS 5/2-606
- [6.12] If You Allege Breach of an Unwritten Contract and Attach the Terms, You Are Pleading Breach of a Written Contract
- [6.13] Velocity Stands for the Proposition That a Plaintiff Must Attach a Written Contract If It Pleads the Contract Is Written
- Chapter 7 — Motions To Dismiss on Accounts Stated
- Chapter 8 — Defending Motions To Dismiss in Small Claims
- Chapter 9 — Common Counterclaims and Other Actions
- Chapter 10 — Motions To Reinstate from a Breached Payment Plan Dismissal
- I. [10.1] Introduction
- II. [10.2] Three-Year Limitation
- III. [10.3] Loss of Jurisdiction
- IV. [10.4] Dismissive Historical Review
- V. [10.5] Courts Possess Infinite Jurisdiction To Enforce Their Orders
- VI. [10.6] Court Did Not Examine the Distinction Between a Dismissal with Prejudice and a Dismissal Without Prejudice
- VII. [10.7] There Is No Magic Language
- VIII. [10.8] Public Policy Supports This Understanding
- IX. [10.9] Postjudgment Jurisdiction
- Chapter 11 — Trial Practice
- I. Witnessless Trial
- II. Relaxed Rules of Procedure — Supreme Court Rule 286
- III. Overcoming Evidentiary Objections
- [11.7] Supreme Court Rule 236 and Its Interaction with Illinois Rules of Evidence 803(6) and 902(11)
- [11.8] What Is Hearsay?
- [11.9] What Is a Hearsay Exception, and Where Is It Found in the Law?
- [11.10] Modern Trend Favoring Admissibility
- [11.11] Inadmissible Third-Party Documents
- [11.12] Admissible Third-Party Documents — Authorized Third-Party Reports
- [11.13] Admissible Third-Party Documents — Successors in Interest
- [11.14] Massachusetts Opens the Gates — “The Records are Coming!”
- [11.15] Northern District Cases Falling on Both Sides of the Issue
- [11.16] Reconciling Conflicting Authority on Business Records — How To Admit Evidence Authored by Parties Other than the Proponent
- [11.17] Overcoming Common Objections
- [11.18] Lack of Personal Knowledge
- [11.19] “Double Hearsay”
- [11.20] Sufficient Indicia of Accuracy/Reliability Is the Critical Consideration
- [11.21] Minimal Witness Expertise Required To Lay Foundation
- [11.22] Admission Under the Illinois Rules of Evidence — An Overview
- [11.23] Texas 1845, LLC v. Dvorkin
- [11.24] Use of Affidavits and Addressing Objections Under the Illinois Rules of Evidence
- [11.25] Commercial Accounts
- [11.26] Standard of Review
- [11.27] Summary
- IV. Proving an Implied Contract
- Chapter 12 — Final Thoughts
Authors
- Christopher R. DiPlacido
Christopher R. DiPlacido
Christopher R. DiPlacido is a Managing Attorney of Collections and Commercial Litigation with Heavner, Beyers & Mihlar, LLC, in Decatur, where he focuses his practice on creditors’ rights. He is the author of For the Record: The Illinois Rules of Evidence and the Admission of Business Records through Foundational Sources, 108 Ill.B.J. 36 (2020), and Objection, Hearsay! Eliminating Confusion on Business Records Admissibility, 31 DuPage Cty.B. Ass’n Brief 5 (2019). He has presented seminars for IICLE®, the Illinois Creditors Bar Association, and the Illinois State Bar Association. Mr. DiPlacido graduated cum laude from Wabash College and received his J.D. from DePaul University College of Law, which he attended while serving in the United States Marine Corps Reserves.
- Michael L. Starzec
Michael L. Starzec
Michael L. Starzec is a Partner with Blitt and Gaines, P.C., in Vernon Hills, wherehe concentrates his practice in creditors’ rights. He is a President Emeritus of the Illinois Creditors Bar Association, author of The History of Credit in 4,000 Years or Less (Loyola Consumer Law Review, Fall 2013), has been recognized by Chief Justice Burke for work to aid unrepresented consumers whose accounts were frozen while courts were closed during the pandemic, thus preventing them from appearing in court to request exemptions. He has presented for IICLE®; the Illinois State, Chicago, and National Creditors Bar Associations; the Conference of Chief Judges of the State of Illinois; the Illinois Supreme Court Rules Committee; and the First Municipal District. Mr. Starzec earned his B.A. from Northern Illinois University and his J.D. from DePaul University College of Law.
Collection Litigation: Representing the Creditor (ARCHIVED 2019 EDITION)
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