APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOHN N. HOURIHANE, JUDGE PRESIDING.
The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j. and T. O'brien, J., concur.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
Plaintiff, Celestine Ford, filed a two-count complaint alleging that the defendant, Dovenmuehle Mortgage, Inc. (Dovenmuehle), a mortgage service company, breached a Veterans Administration ("VA") guaranteed residential mortgage contract and violated section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 262 now codified at 815 ILCS 505/2 (West 1992)) by imposing a late charge computed on 4% of the aggregate monthly payment of principal, interest, taxes and insurance ("PITI") rather than 4% of the monthly installment of principal and interest ("P&I"). This appeal is taken from the denial of plaintiff's motion for "classwide summary determination of major issues" and the granting of defendant's cross motion for summary judgment on both counts. *fn1
The material facts of this case are undisputed. In 1975, plaintiff obtained a mortgage loan, guaranteed by the Veterans Administration, from Percy Wilson Mortgage and Finance Corporation. The mortgage documents executed at closing consisted of a mortgage contract and a promissory note, which were written on standard VA forms. Dovenmuehle serviced plaintiff's mortgage and assessed late charges against plaintiff's delinquent payments.
The late charge provision of plaintiff's mortgage contract provided in pertinent part:
"Together with, and in addition to, the monthly payments of principal and interest payable under the terms of the note secured hereby, the Mortgagor will pay to the Mortgagee *** on the first day of each month until the said note is fully paid, the following sums:
(a) A sum equal to the ground rents, if any, next due, plus the premiums that will next become due and payable on policies of fire and other hazard insurance covering the mortgaged property, plus taxes and assessments next due on the mortgaged property ***
(b) The aggregate of the amounts payable pursuant to subparagraph (a) and those payable on the note secured hereby, shall be paid in a single payment each month, to be applied to the following items in the order stated:
I. ground rents, if any, taxes, assessments, fire, and other
hazard insurance premiums;
II. interest on the note secured hereby; and
III. amortization of the principal of the said note.
Any deficiency in the amount of any such aggregate monthly payment shall, unless made good prior to the due date of the next payment, constitute an event of default under this mortgage. At Mortgagee's option, Mortgagor will pay a "late charge" not exceeding four per centum (4%) of any installment when paid more than fifteen (15) days after the ...