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11/22/96 GEORGE K. PRICE AND HARRY L. SCHUMAN v.

November 22, 1996

GEORGE K. PRICE AND HARRY L. SCHUMAN, PLAINTIFFS-APPELLANTS,
v.
FCC NATIONAL BANK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Ellis E. Reid, Judge Presiding.

Released for Publication January 15, 1997. Certiorari Denied November 3, 1997,

Presiding Justice McNULTY delivered the opinion of the court: Cousins and Hourihane, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Plaintiffs George K. Price and Harry Schuman appeal from the dismissal of their action alleging violation of the Illinois Credit Card Issuance Act (815 ILCS 140/6 (West 1994)), breach of contract and common law fraud against FCC National Bank (FCC). We affirm.

FCC offers Visa and Mastercard bank credit cards under the name "First Card." Plaintiffs maintain bank credit cards with FCC. The privileges and obligations of holding a First Card are set forth in the cardholder agreement (agreement). Prior to April 1, 1991, the agreement provided that all cardholders had a "grace period" of 25 days after receipt of a billing statement to pay an outstanding balance without incurring a finance charge. On April 1, 1991, the agreement was amended to provide that a finance charge would accrue unless payment was made on or before the "payment due date" printed on the billing statement. The grace period was the time between the billing date and the payment due date.

FCC breaks its cardholders into two groups: cardholders who have paid their previous month's balance in full, which is the group plaintiffs seek to represent; and (2) cardholders who have not paid the total amount due on their bill. For those in category one, previous month full payers, FCC inserts a Payment due date on their next monthly billing statement that is 20 days from the statements billing date. However, FCC does not assess finance charges against any customer who pays his balance within 25 days after the billing date. For those in category two, those who have run a balance on their previous month's bill, FCC sets due dates on these cardholders' statements that are 25 days from the billing date, but because these cardholders have not paid their previous month's balance in full, they are assessed finance charges until that balance is paid in full.

Plaintiffs originally filed suit on March 30, 1992, in federal court, claiming that FCC's practice of inserting a payment due date of 20 days after the billing date but not charging finance charges until 25 days after the billing date violated the Truth In Lending Act. 15 U.S.C. §§ 1601 through 1693 (1988). Plaintiffs' suit also alleged that this practice violated the Illinois Credit Card Issuance Act (815 ILCS 140/6 (West 1994), was a breach of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 (West 1994)), and a breach of contract. Plaintiffs also sought class certification. The district court dismissed plaintiffs' complaint, finding that FCC's grace period was authorized by the disclosure requirements of the Truth in Lending Act. Price v. FCC National Bank, 1992 U.S. Dist. LEXIS 12462, 92 C 2164 (N.D. Ill. 1992). The court declined to exercise jurisdiction over plaintiffs' state claims. The seventh circuit affirmed. Price v. FCC National Bank, 4 F.3d 472 (7th Cir. 1993).

Plaintiffs then brought suit in state court alleging violation of the Illinois Credit Card Issuance Act, breach of contract and common law fraud. Defendant moved to dismiss plaintiffs' complaint pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 1994). The trial court granted defendant's motion to dismiss, finding that plaintiffs' claim alleging violation of the Credit Card Issuance Act failed to state a claim since the agreement provides that Delaware law would apply, and plaintiffs' breach of contract and fraud claims fail to state claims since plaintiffs have not been damaged. Plaintiffs appeal.

Plaintiffs' complaint alleges the defendant violated section 6 of the Credit Card Issuance Act, which states, in pertinent part:

"§ 6. Disclosure to applicants.

(a) Except as provided in Section 25 of the Retail Installment Sales Act, relating to sellers or holders under a retail charge agreement and in subsection (c), a credit card issuer shall disclose, either on an application for a credit card or on literature accompanying the application, on or with any credit card account solicitation, and on each periodic billing statement mailed to a card holder, the following:

(3) the grace period, which is defined as the period within which any credit extended under such credit plan must be repaid to avoid incurring an interest charge represented in terms of an annual percentage rate of interest, and if no such period is offered such fact shall be clearly stated." 815 ILCS 140/6 (West 1994).

Plaintiffs contend that defendant violated section 6 of the Credit Card Issuance Act, as well as committed common law fraud and breach of contract, when it represented, by means of a false payment due date, a period that is shorter than the period within which any ...


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