[Proposed] Rule 10.9 of the Circuit Court of Cook County: Actions to Enforce Credit
Card Contracts in the Municipal Department
Note: These rules were developed through study of the Illinois Supreme Court Rules, the
Code of Civil Procedure and applicable case law, and that any inconsistencies therewith
should be construed in favor of the applicable statutes and case law.
(a)
Any complaint filed by the “creditor” under an “open-end credit plan” (as those
terms are
defined in 15 U.S.C. §1602) shall contain at least the following information in order to
obtain a judgment:
1.
Venue and personal jurisdiction. The complaint shall allege the legal basis
for filing suit in Cook County (e.g., the defendant resides in Cook County, the defendant signed
the contract sued upon in Cook County, a material part of the transaction occurred in Cook
County and the transaction is not a consumer transaction, etc.). Proof of service consistent with
the allegations must be presented in order to obtain a default judgment. If the proof of service
differs from the allegations of the complaint, the discrepancy shall be explained by affidavit (e.g.,
the defendant resides in Cook County but works in Kane County and was served at their place of
employment). The attention of counsel is directed to Williams v. Illinois State Scholarship
Commission, 139 Ill.3d 24, 563 N.E.2d 465 (1990), and 15 U.S.C. §1692i, in addition to the
venue provisions of the Code of Civil Procedure.
2.
Identification of plaintiff. If the name of the plaintiff is not
identical to the original issuer of the credit instrument, the complaint shall state the relationship
between the name of the plaintiff and the issuer (e.g., Chase Bank USA, N.A., successor by
merger to First USA Bank). Plaintiffs who are assignees must identify the person or entity from
whom they received the assignment, and if the assignor is not the original issuer, each transferee
in the chain of title. Assignments of debts or portfolios of debts are covered further under
paragraph 12.
3.
Identification of account: The entire original account number, and/or the
last four digits of the most recent pre-default account number.
4.
Breach of Contract. If plaintiff is pleading breach of contract, a signed
contract or application should be attached to the complaint. Illinois Code of Civil Procedure 2606. If no signed application or contract is available, plaintiff must allege specific facts
establishing the formation of the contract (i.e., the date defendant allegedly agreed to be obligated
under the account and/or the subsequent use of the card ). If plaintiff attaches “boilerplate”
terms and conditions of contract, specific facts must be alleged as to how those terms are
applicable to the defendant (i.e., must allege facts as to when, how and where the contract terms
were sent to defendant, and subsequent use of the card to make those terms binding on the
defendant).
5.
Account Stated. If plaintiff is claiming under a theory of account stated,
the complaint should also allege the specific facts of when and how the defendant agreed to pay
the specific amount claimed (separate from the original credit card agreement and/or billing
statements).
6.
Dates. The complaint shall state the date the debt became delinquent, the
date the debt was “charged off” (as that term is used in Federal Financial Institutions
Examination Council, Uniform Retail Credit Classification and Account Management Policy, 65
Fed. Reg. 36903 [Monday, June 12, 2000]), and the date of the last payment on the debt.
7.
Interest calculations. If interest is claimed, the complaint shall state the
amount of interest claimed as of the date or expected date of filing, and explain how that amount
was calculated using applicable dates, rates and amounts, in a mathematical progression easily
followed by the Court and its staff. If interest, either before or after charge-off, is claimed at a
rate or rates in excess of the Illinois statutory rate (presently 5%), the contract documents
providing for the rate(s) shall be attached.
8.
Examples of interest calculations.
a.
If suit is brought on a credit card agreement providing for a fixed
rate of 19.9%, the complaint should allege that interest is sought at a fixed rate of 19.9%, as
provided for in the cardholder agreement attached as Exhibit A, that interest through the chargeoff date of May 3, 2005 is included in the $x chargeoff balance, and that the amount of interest
from the chargeoff date of May 3, 2005 to the date of filing at a fixed rate of 19.9% on the
chargeoff balance of $x is $y. The plaintiff or its counsel may update the computation upon
entry of judgment or provide a per diem amount in the complaint.
b.
If interest is sought at the Illinois statutory rate of 5%, similar
allegations should be made, except that no reference to an agreement is required.
c.
If suit is brought on a credit card agreement providing for a
variable rate of 12% over the prime rate as reported by the Federal Reserve Board, to be adjusted
on the first day of each month, the complaint should allege that interest is sought at 12% over the
prime rate, adjusted on the first day of each month, as provided for in the cardholder agreement
attached as Exhibit A, and that the applicable prime rates, change dates, rates of interest sought,
and amounts of interest sought are as follows:
Change Date
Prime rate
Prime rate +
Amount of
on change date
12% margin
interest for period
June 1, 2005
6%
18%
$
July 1, 2005
6.25%
18.25%
Sept. 1, 2005
6.5%
18.5%
Oct. 1, 2005
6.75%
18.75%
Nov. 1, 2005
7.0%
19.0%
Jan. 1, 2006
7.25%
19.25%
Feb. 1, 2006
7.5%
19.5%
[and so forth]
Total as of [
]
$
The documentation submitted must fully justify the rates claimed. The Court will take judicial
notice of the prime rate and other rates in Federal Reserve publications such as Bulletin H.15;
any others must be alleged and proven by the plaintiff.
d.
If the plaintiff wishes to simplify the calculations under a variable
rate formula, the complaint may treat the prime rate or other base rate as zero and seek the
“margin” rate of interest (12% in the above example), or seek the statutory rate (5%).
9.
Attorney’s fees. If attorney’s fees are claimed, the contract or other basis
for liability for fees must be attached or cited. It is the practice of the Court to allow a modest
amount (currently $350) upon entry of a default judgment without specific proof. If a greater
amount is claimed, a petition shall be submitted prior to award.
10.
Status of defendant as contractually liable and not authorized user. If there
is more than one defendant, or more than one name appears on the account, the complaint shall
allege that each person sued is contractually responsible for the debt, or otherwise allege facts
establishing a basis for obtaining a judgment against each person.
11.
Privacy of information. If it is necessary for the plaintiff to state a Social
Security number or account number in a pleading, use the last four digits only.
12.
Affidavits In Support Of Claim. Verifications and affidavits shall be
signed by an employee of the creditor before default, or a company which serviced the account
prior to default. The affiant must have personal knowledge of the facts supporting the amount of
the claim, i.e., how the original creditor’s business records were created and maintained, the
entire account history, and how the claimed balance was calculated as to principal and interest.
Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007). Both
the affiant and the employer shall be clearly identified by printing or typing under the signature,
and the business address of the affiant and his/her employer shall be included.
13.
Military Affidavit. A military affidavit must be filed before a default
judgment will be entered. The affidavit must state either (1) that the affiant checked the
Department of Defense computer and that it showed that the defendant is not an active
servicemember, or (2) other facts (such as the defendant’s age) that satisfy the Court that the
defendant is not an active servicemember.
14.
Debt Buyers. Any complaint filed by an assignee of a creditor under an
open-end credit plan (or the assignee of a prior assignee of the original creditor) shall contain all
of the above information, and in addition the following:
a.
Legally-sufficient documentation for each transfer or assignment of the
account, including documents identifying the specific account (i.e., actual assignment documents
showing that the account was included in the pool or portfolio of accounts assigned). See
Collection Agency Act, §86, 205 ILCS 425/86.
b.
A sworn statement that the plaintiff is the assignee and holder of the
account. Illinois Code of Civil Procedure §2-403.
15.
Attorney Signature The Rule 137 certification by the attorney on a credit
card collection Complaint (and/or any motion for judgment) implies compliance with these
rules. The name of the attorney who signs the complaint must be typed or otherwise clearly
legible.