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01/12/89 Stacy Lane, v. Owen Fabert

January 12, 1989

STACY LANE, PLAINTIFF-APPELLANT

v.

OWEN FABERT, D/B/A TRADER'S WORLD, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

533 N.E.2d 546, 178 Ill. App. 3d 698, 127 Ill. Dec. 674 1989.IL.17

Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, J., concurs. JUSTICE LUND, Concurring in part, and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This case comes to us on appeal from the circuit court of Champaign County. Plaintiff appeals from the dismissal of count I of her complaint and summary judgment for defendant on the three remaining counts. We find the court was correct in dismissing count I and granting summary judgment on count II. We conclude it erred, however, in granting summary judgment on counts III and IV, sounding in consumer fraud and usury, and reverse judgment and remand as to them.

Defendant Owen Fabert does business as a pawnbroker under an assumed name, Trader's World. Plaintiff Stacy Lane received $60 from the business in exchange for a ring. The plaintiff's deposition shows she did not discuss the terms of the transaction with either Fabert or the clerk who waited on her. She signed a sales contract for the ring without reading it. Plaintiff had previously pawned this ring in November 1983 at the defendant's establishment. Plaintiff paid $18 a month to the defendant until February of 1986 when she went to redeem the ring and was told it could not be found. She stated she believed the ring was merely pledged property serving as security and she had specifically asked for a loan. She understood she would lose her rights to the ring if she failed to make an $18 payment each month.

On August 14, 1986, plaintiff filed her complaint in the circuit court of Champaign County. On August 17, 1987, the trial court dismissed count I of the complaint, refusing to imply a private cause of action under section 2 of "An Act for the regulation of pawnbrokers . . ." (Ill. Rev. Stat. 1985, ch. 17, par. 4652).

Plaintiff filed an amended complaint on August 20, 1987, and a second-amended complaint containing an additional count IV on September 8, 1987. Count II of the amended complaint alleged common law fraud. Count III alleged statutory fraud under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.). Count IV alleged violation of sections 5 and 6 of the Interest Act (Ill. Rev. Stat. 1985, ch. 17, pars. 6412, 6413). The trial court, having before it the motion briefs of the parties, the sales contract, and plaintiff's discovery deposition, granted summary judgment on the three remaining counts. The court's order was given on May 5, 1988, and notice of appeal was filed on May 25, 1988.

Some confusion exists as to the exact status of the portions of counts II, III, and IV, naming as defendant Owen Fabert, Inc. This corporation

However, judgment was granted based on a stipulation by defense counsel that plaintiff's pleadings could be amended should the corporation be reinstated. At a later hearing, a disagreement arose as to the precise terms of the stipulation and the trial court indicated that its earlier judgment had been inappropriate. It did not explicitly reverse its earlier ruling but granted plaintiff leave to file amended pleadings to include the defendant corporation. Later, at the same hearing, the court granted summary judgment on the merits of all remaining counts against the defendant individual.

Despite the fact the court had granted leave to file amended pleadings to include defendant corporation, plaintiff chose to agree that there were no pending matters before the court in order to allow appeal to this court. As the counts against the defendant corporation were identical in substance to those against the defendant individual, and judgment had been entered against plaintiff on the merits of these counts, refiling the pleadings again with a mere change of defendants would have been futile. Since plaintiff has not raised this issue on appeal, and the trial court's summary judgment as to defendant corporation still stands, only the portions of the counts relating to the defendant individual are in issue here.

Plaintiff urges this court to imply a private cause of action for what she alleges is a violation of section 2 of "An Act for the regulation of pawnbrokers . . ." (Pawnbrokers Act) (Ill. Rev. Stat. 1985, ch. 17, par. 4652). Section 2 limits the interest charge on a loan from a pawnbroker to 3% per month. The trial court declined to imply such a cause, noting the existence of criminal penalties in the Pawnbrokers Act, the availability of other remedies to this plaintiff, and the failure of the legislature to provide such a remedy despite frequent amendments of the Pawnbrokers Act over its long history.

Plaintiff asks this court to imply a cause of action under section 2 of the Pawnbrokers Act. The Pawnbrokers Act in general provides for the regulation of pawnbrokers. It is not comprehensive but requires that interest not exceed 3% per month, customers receive a memorandum of their transaction, records of transactions be kept and made available for inspection by law enforcement agencies, and reports be made to enforcement agencies on a regular basis. It also requires that pawnbrokers retain pledged property for one year after it is pawned. The general intention of the Pawnbrokers Act is to protect the public ...


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