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12/09/87 William W. Warren Et Al., v. James K. Darnell Et Al.

December 9, 1987

WILLIAM W. WARREN ET AL., D/B/A HICKORY SHORES RESORT, PLAINTIFFS-APPELLANTS

v.

JAMES K. DARNELL ET AL., DEFENDANTS-APPELLEES



Before proceeding with our Discussion, we note that the Truth in Lending Act was amended by the Truth in Lending Simplification and Reform Act (Pub. L. No. 96 -- 221, 94 Stat.168 (1980)) on March 31, 1980, approximately six months before the contract at issue in this case was signed. With one exception not relevant here, however, the amendments made by the TILSRA did not take effect until the expiration of two years and six months after that legislation was enacted (Oct. 1, 1982). Although Congress provided that creditors could elect to comply with the TILSRA, rather than the prior legislation, before the effective date of the amendments (see 15 U.S.C.A. § 1602, Historical Note (West 1982); Cox v. First National Bank of Cincinnati (6th Cir. 1985), 751 F.2d 815, 821), plaintiffs do not purport to have made such an election here. Accordingly, the TILSRA has no application. The contract for sale at issue in this case must be examined in light of the requirements of the pre-TILSRA legislation as that legislation existed at the time the contract was executed (see 751 F.2d at 822; Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1, 12, 499 N.E.2d 440, 444), and all references to the Truth in Lending Act in this opinion are to that version of the statute.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

517 N.E.2d 636, 164 Ill. App. 3d 273, 115 Ill. Dec. 225 1987.IL.1809

Appeal from the Circuit Court of Clinton County; the Hon. Arthur G. Henken, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiffs, William and Halleck Warren, filed a small claims action against defendants, James and Margaret Darnell, in the circuit court of Clinton County to recover monies allegedly owed by defendants under a contract for the sale of a membership in Hickory Shores Resort. Defendant Margaret Darnell denied that she was indebted to plaintiffs. She also brought a counterclaim in which she asserted that the contract violated section 226.8(b)(7) of Federal Reserve Board Regulation Z (12 C.F.R. § 226.8(b)(7), reprinted in 15 U.S.C.A. foll. § 1700 (West 1982)) promulgated pursuant to the Federal Truth in Lending Act (15 U.S.C.A. 1601 et seq. (West 1982)). On Margaret's motion, the circuit court granted summary judgment in her favor on that counterclaim, awarding her $1,000 plus costs and attorney fees of $6,861.36. Plaintiffs unsuccessfully moved to vacate this award and the order granting summary judgment. In denying their motion, the court made a written finding that there was "no just reason for delaying appeal." (See 107 Ill. 2d R. 304(a).) This appeal followed. We affirm.

When a motion for summary judgment is presented, the task of the court "is not to resolve a disputed factual question, but rather to determine whether one exists." (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188, 190.) The pleadings, affidavits, depositions and admissions on file must be construed strictly against the moving party and liberally in favor of the opponent. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496.) Summary judgment is proper if these materials establish that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).

The materials submitted to the circuit court here showed that on September 27, 1980, defendants executed a document denominated as a "Contract for Sale" under which they agreed to purchase from plaintiffs a membership in Hickory Shores Resort. The sale was made on credit under the following terms:

1. Cash Price: $5,195

2. Cash Down Payment: $495

3. Unpaid Balance of Cash Price and Amount Financed (1-2): $4,700

4. Finance Charge: $2,388.64

5. Amount of Note (3): $7,088.64

6. Deferred Payment Price (1): $7,583.64

7. Amount of Payment: $73.84

8. Number of Payment: 96

9. Total of Payments (7x8): ...


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