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05/23/95 CHARLES C. ALLENSON v. HOYNE SAVINGS BANK

May 23, 1995

CHARLES C. ALLENSON, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
HOYNE SAVINGS BANK, F/K/A HOYNE SAVINGS AND LOAN ASSOCIATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Mary Jane Theis, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

Plaintiff, Charles C. Allenson, filed this four-count class action against defendant, Hoyne Savings Bank (Hoyne), for misamortization of mortgage loan payments. The circuit court dismissed plaintiff's claim under the Racketeer Influenced and Corrupt Organization Act (RICO) (18 U.S.C. §§ 1961, 1962 (1988)) for failure to allege facts sufficient to support such an action. For the following reasons, we reverse the judgment of the circuit court.

The plaintiff class of home mortgage borrowers brought this actionagainst Hoyne, an Illinois savings and loan association engaged in making residential and commercial loans, for the alleged improper charging of interest "in advance" on loan payments, rather than "in arrears," as loan documents directed. Plaintiff alleged that his monthly mortgage payments were improperly allocated between interest charges and principal reduction. Plaintiff filed his first complaint in 1990 alleging breach of contract, violation of the Illinois Consumer Fraud and Deceptive Business practice Act (Consumer Fraud Act) (Ill. Rev. Stat. 1989, ch. 121 1/2, par. 262 (now 815 ILCS 505/2 (West 1992))), and violation of the Illinois Interest Act (Ill. Rev. Stat. 1989, ch. 17, par. 6410 (now 815 ILCS 205/4a (West 1992))). On July 11, 1991, in response to Hoyne's motion to dismiss for failure to state a cause of action, the circuit court dismissed the Illinois Interest Act count but maintained the breach of contract and Consumer Fraud Act counts.

Plaintiff filed a third amended complaint on September 17, 1992, adding a claim under RICO. RICO, in pertinent part, states:

"51961. Definitions

As used in this chapter --

***

(3) 'person' includes any individual or entity capable of holding a legal or beneficial interest in property;

(4) 'enterprise' includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." (18 U.S.C. §§ 1961(3), (4) (1991).)

"§ 1962. Prohibited Activities

***

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or ...


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