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Fineman v. Citicorp

OPINION FILED NOVEMBER 6, 1985.

ELLEN FINEMAN ET AL., PLAINTIFFS-APPELLANTS,

v.

CITICORP ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne and the Hon. Harold A. Siegan, Judges, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Plaintiffs Ellen and Gabriel Fineman filed a complaint for declaratory judgment against defendants Citicorp and Citibank (South Dakota), N.A. The trial court dismissed the complaint with prejudice and plaintiffs appeal. We affirm.

The facts are not in dispute. In 1981, plaintiffs were holders of "Citibank-Citicorp" MasterCards issued by defendant Citibank (South Dakota), N.A. In May 1981, defendants demanded and plaintiffs paid an annual fee of $15 for the card. They received cards with expiration dates of October 31, 1982. The use of the cards was governed by the Citibank "Retail Installment Credit Agreement." In the agreement, defendants stated:

"Amendment. We can change this Agreement including the finance charge and the annual percentage rate at any time. However, if we do we will mail you written notice at least 30 days before the beginning of the billing cycle in which the changes becomes effective. If you do not agree to the changes, you must notify us in writing and return the card cut in half within 30 days and pay us the balance * * *. Otherwise we will understand that you agree to the changes in the notice." (Emphasis in original.)

In January 1982, defendants sent plaintiffs a notice that defendants were increasing the annual fee from $15 to $20, effective March 2, 1982, for all cardholders, regardless of expiration dates. The notice was accompanied by a letter and a brochure which described "10 valuable extra services" available to those who paid the increased fee, including "free $100,000 common carrier travel insurance." The notice advised cardholders that "[o]nly cardmembers agreeing to the new terms will be covered by the $100,000 Common Carrier Insurance." The notice also stated:

"If you do not wish to agree to the new terms you must notify us in writing by March 2, 1982 * * *. You can continue using your cards under the existing terms until the expiration date printed on your cards, even if you do notify us that you do not agree to the new terms." (Emphasis in original.)

Plaintiffs did not write to Citibank. On March 2, 1982, plaintiffs had a credit balance on their credit card account with defendants. Defendants subtracted $0.83 from the balance as payment for plaintiffs' prorated portion of the increase in the annual fee from March 2 until plaintiffs' "anniversary date," which was May 1, 1982.

On April 16, 1983, plaintiffs filed their complaint in three counts. In count I, plaintiffs sought a declaratory judgment that defendants breached the contract for retail credit by substantially altering the terms of the contract without plaintiffs' assent. Plaintiffs claimed 83 cents as damages. Plaintiffs sought the same declaratory judgment in count II of their complaint, but they sought it as representatives of the class of all of defendants' cardholders who were affected by the January notice. They also sought a refund of all charges paid pursuant to the January notice by all members of the class. In count III, plaintiffs, as representatives of the class described in count II, sought a declaratory judgment that the January notice violated "An Act in relation to unsolicited merchandise, contractual obligations and other intangibles." Ill. Rev. Stat. 1981, ch. 121 1/2, par. 351.

Defendants moved to dismiss the complaint, and plaintiffs moved for class certification and summary judgment as to liability. Plaintiffs also filed a "Request for Findings of Fact and Conclusions of Law." The trial court dismissed the complaint with prejudice without ruling on plaintiffs' motions.

Plaintiffs argue that the "Retail Installment Credit Agreement" was a contract between plaintiffs and defendants, and the January notice was an attempt to modify the contract. They argue that the attempted modification failed because (1) there was no consideration for the modification, (2) defendants engaged in deceptive practices in order to induce acceptance of the modification, and (3) defendants construed silence as acceptance, in violation of the common law of contracts and the "Act in relation to unsolicited merchandise * * *." (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 351.) We find that the January notice effectively modified the credit contract, and therefore the trial court properly dismissed plaintiffs' complaint.

First, plaintiffs argue that there was no consideration for the modification because defendants did not promise to do anything more than they were obliged to do under the original agreement. Plaintiffs contend that the "10 valuable extra services" cannot be construed as consideration because nine of the services are only sales solicitations. *fn1 The only service whose availability was clearly contingent on payment of the increased fee was the provision of $100,000 insurance for travel on common carriers. Plaintiffs argue that the insurance is not adequate consideration for the modification because plaintiffs never received any benefits from the insurance, and the cost to defendants of the insurance was negligible.

• 1 "The adequacy of consideration must be determined as of the time a contract is agreed upon, not from the hindsight of how the parties fare under it." (Bonner v. Westbound Records, Inc. (1979), 76 Ill. App.3d 736, 743, 394 N.E.2d 1303.) Insurance has value to those insured even if the events on which the payments of benefits is conditioned do not occur. (Wilson v. Continental Body Corp. (1981), 93 Ill. App.3d 966, 970, 418 N.E.2d 56.) The absence of any paid benefits from the insurance does not render the insurance inadequate consideration for the modification.

• 2, 3 Plaintiffs also argue that the insurance was not adequate consideration for the five dollar increase in the annual fee because the cost to defendants of the insurance was negligible. Defendants paid only 10 1/2 cents per year per cardholder for the common carrier insurance. However, "[i]t is not the function of either the circuit court or this court to review the amount of the consideration which passed to decide whether either party made a bad bargain [citations omitted] unless the amount is so grossly inadequate as to shock the conscience of the court." (Bonner v. Westbound Records, Inc. (1979), 76 Ill. App.3d 736, 743.) We cannot say that our conscience is shocked by the exchange of two months of $100,000 of common carrier travel insurance coverage for plaintiffs' 83 cents. Therefore, we find that there was adequate consideration for the proposed modification of the credit agreement.

Plaintiffs next contend that defendants described the travel insurance deceptively in their brochure, and that this deceptive practice renders any acceptance of the contract modification ineffective. In particular, plaintiffs argue that defendants violated Illinois consumer protection law (Ill. Rev. Stat. 1981, ch. 121 1/2, pars. 261 et seq. and 311 et seq.) by describing the insurance as "free," by failing to advise cardholders that the insurance would still be available at the end of the annual renewal period for ...


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