Lopinot grants in part, denies in part auction company’s motion to dismiss suit alleging shill bidding

By Heather Isringhausen Gvillo | Apr 26, 2017

St. Clair County Circuit Judge Vincent Lopinot granted partial dismissal of a suit alleging shill or ghost bidding was used to raise prices at a land auction, but granted the plaintiffs an opportunity to provide additional details.

The Dennis M. Kleinschmidt and Diana K. Kleinschmidt Joint Revocable Trust #1, by trustee Dennis Kleinschmidt, and The Mary Kim Furrer Living Trust, by trustee Mark Furrer, filed the complaint on Nov. 14 against Brad Schaller, individually, and Schaller Auction Services.

In their complaint, the plaintiffs allege they participated in a land auction performed by Schaller Auction Services at the Millstadt Quail Club on Nov. 18, 2014. They claim Schaller unlawfully engaged in shill or ghost bidding to raise the price of the land.

They allege the defendants intentionally failed to register and approve all bidders present and failed to record all biddings.

Schaller filed a motion to dismiss the complaint on Dec. 16 through attorney James Mendillo of Freeark Harvey & Mendillo in Belleville.

He argues that if the plaintiffs believed the prices were too high, they should not have made the bids.

The plaintiffs filed a response in opposition to Schaller’s motion to dismiss on Feb. 14 through attorneys Donald Schoemaker and James Bock of Greensfelder Hemker & Gale PC in Belleville. They argue that the complaint provided sufficient facts to reasonably inform the defendants of the nature of the claim.

They state that the defendants’ argument that they do not have a claim under the Consumer Fraud Act is incorrect.

“The very heart of Plaintiff’s claim is that the Defendants engaged in shill bidding to improperly inflate the price per acre of the tracts at issue and to induce the Plaintiffs to make higher bids.

“For the Defendants to claim that because their shill bidding was successful in inducing the Plaintiffs to buy the tracts at an inflated price somehow destroys the Plaintiffs cause of action is unpersuasive. In fact, it bolsters Plaintiffs’ claims and clearly shows that Plaintiffs have pleaded the elements of Consumer Fraud,” the opposition states.

The plaintiffs also argue that Shaller’s affidavit does not destroy their claim in count III.

“Defendants’ allegations simply confirms Plaintiffs’ claim that tracts 2 and 3 were offered, at the auction, individually and then as a unit,” the opposition states.

They add that the affidavit ignores their allegation that the defendants published false advertisements indicating that the real estate would be auctioned in multiple individual tracts and ignores the factual and legal dispute as to whether the defendants wrongfully added a buyer’s premium at the auction.

Schaller also filed a motion to strike the plaintiff’s jury demand, arguing that the plaintiff is not entitled to a jury trial under the Illinois Consumer Fraud Statute, “as it is a not a creature of the common law and no jury option is provided for in the statute (sic).”

On March 14, Lopinot filed an order granting the defendants motion to strike jury demand with prejudice and denying the defendants motion to dismiss counts II and III. He also granted the defendants motion to dismiss count I, but gave the plaintiffs 30 days to file an amended count I with more specificity.

St. Clair County Circuit Court case number 16-L-601

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Freeark, Harvey and Mendillo St. Clair County Circuit Court

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