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Midstate Siding and Window Company, Inc. v. Rogers

Illinois Appellate Court


September 10, 1999

MIDSTATE SIDING AND WINDOW COMPANY, INC., PLAINTIFF-APPELLANT
V.
KENNETH ROGERS AND ELLA ROGERS, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of the 9th Judicial Circuit, Knox County, Illinois No. 96--LM--386 Honorable James B. Stewart Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

In this case we are essentially presented with one question: Is the plaintiff, Midstate Siding and Window Co., Inc. (Midstate), subject to the Credit Services Organizations Act (Credit Services Act or Act) (815 ILCS 605/1 et seq. (West 1998))? The trial court held that Midstate was governed by the Act and violated it through its dealings with the defendants, Kenneth and Ella Rogers. Pursuant to the following Discussion, we affirm. In so doing, we hold that the plain language of the Act supports coverage for retailers that aid consumers in obtaining extensions of credit as defined by the Act. In addition, we hold that appellate attorney fees are recoverable under the Act.

BACKGROUND

Midstate contracted with the Rogers to provide aluminum siding for the Rogers' home. In both its briefs and its oral arguments to this court, Midstate admitted that, as part of the contract, it agreed to help the Rogers obtain financing. To that end, the Rogers filled out a customer financing application that Midstate forwarded to several lending institutions. Bank One of Peoria eventually accepted the Rogers' application.

After finance approval, the Rogers refused to accept performance of the contract, so Midstate brought suit to enforce the contract. The Rogers counterclaimed, arguing that Midstate was subject to the Act and that the contract was void under the Act because it did not contain several of the requirements enumerated in sections 6 and 7 thereof, such as the terms and conditions of payment. 815 ILCS 605/6,7 (West 1998).

The trial court heard the cause at a bench trial that was not recorded. Subsequently, through an opinion letter the court held that Midstate's conduct fell under the Act and that Midstate violated the Act with respect to the Rogers' contract. In addition, the court awarded the Rogers $6,157.50 in attorney fees.

On appeal, Midstate confines its argument to the applicability of the Act, contending that retail businesses such as Midstate should not be governed by the Act. The Rogers argue that they should be awarded attorney fees for this appeal.

DISCUSSION

The Credit Services Organization Act has been in effect for over nine years. Nevertheless, this case presents an issue of first impression, having never been placed before an appellate court in this state.

The judicial role in construing a statute is to ascertain legislative intent and give it effect; to aid in accomplishing this task, the court should attempt to determine the objective the legislature sought to accomplish and the evils it desired to remedy. People v. Scharlau, 141 Ill. 2d 180, 565 N.E.2d 1319 (1990). The most reliable indicator of intent is the statute's language, which should be given its plain and ordinary meaning. In re Estate of Rennick, 181 Ill. 2d 395, 692 N.E.2d 1150 (1998). When a statute defines its own terms, however, those terms must be construed according to the definitions contained therein. Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 666 N.E.2d 1198 (1996). If statutory language is clear and unambiguous, a court must enforce it as written and may not resort to other aids for construction. Superior Structures Co. v. City of Sesser, 292 Ill. App. 3d 848, 686 N.E.2d 710 (1997).

When construing a statute, we must presume that the legislature did not intend unjust, absurd or unreasonable consequences. Thomas P. Valenti, P.C. v. Swanson, 294 Ill. App. 3d 492, 690 N.E.2d 1031 (1998). The construction of a statute is a question of law which we review de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 659 N.E.2d 961 (1995).

According to the Act, its purpose is to provide prospective consumers of credit services companies with the information necessary to make informed decisions and to protect the public from unfair or deceptive business practices. 815 ILCS 605/2 (West 1998). In order to be covered by the Act, a defendant must represent "with respect to the extension of credit by others and in return for the payment of money or other valuable consideration, *** that the [defendant] can or will *** (i) improv[e] a buyer's credit record, history, or rating; (ii) obtain[] an extension of credit for a buyer; or (iii) provid[e] advice or assistance to a buyer with regard to either subsection (i) or (ii)." 815 ILCS 605/3(d) (West 1998). Under the Act, an "extension of credit" is the right "to defer payment of a debt or to incur a debt and defer its payment offered or granted primarily for personal, family, or household purposes." 815 ILCS 605/3(c) (West 1998).

The Rogers contend that, by agreeing to help them obtain financing, Midstate satisfied the Act's definition of a "credit services organization." We agree. The above-quoted statutory language is clear and unambiguous and plainly supports coverage in this case. Midstate has met the definition contained in subsection (d)(iii) by providing assistance to the Rogers with regard to obtaining an extension of credit. In addition, the agreement was supported by consideration in that the financing assistance was a part of the entire contract. As a consequence, we find that the trial court correctly held Midstate liable under the Act.

In opposition to this holding, Midstate mainly makes the policy argument that, if the Act is interpreted to include Midstate, then all retailers that assist customers in obtaining credit would be subject to the Act. In effect, Midstate contends that such an outcome is absurd. We disagree. Subjecting all retailers that offer to help their patrons obtain financing to the rigors of the Act furthers the policy considerations of the Act to help credit customers make informed decisions and protect them from unfair and deceptive practices. Furthermore, Midstate has not offered one colorable argument for distinguishing retailers from other organizations under the Act.

To the contrary, we note that the case at bar presents a factual situation that compels application of the Act. Through their dealings with Midstate, the Rogers were placed in the precarious position of having signed a contract without knowing the interest rate that would eventually be charged. Midstate might have secured an outrageous rate to which the Rogers, for all intents and purposes, would have been bound. Such a situation is directly at odds with the Act and is likely to be one of the very evils that the legislature attempted to remedy through the Act.

Midstate attempts to salvage its argument by contending that no retailers have registered under the Act pursuant to the Act's registration requirement. See 815 ILCS 605/9 (West 1998). However, when the language of a statute is clear, we must enforce it as written and may not resort to extrinsic aids of construction. Szpila v. Burke, 279 Ill. App. 3d 964, 665 N.E.2d 357 (1996). Moreover, if the legislature intended to confine the Act to those companies that solely provide credit services and not to include retailers within the Act's purview, we believe that the Act would have so stated. Section 3 of the Act includes a list of organizations and people who are not covered, such as nonprofit organizations, real estate brokers and attorneys. 815 ILCS 605/3 (West 1996). There is no mention made of retailers in the list of specific exceptions, and we ourselves may not add retailers to that list. See Gabriel Builders, Inc. v. Westchester Condominium Ass'n, 268 Ill. App. 3d 1065, 645 N.E.2d 453 (1994)(when the legislature is silent, a court may not fill the void through judicial interpretation). Consequently, we are compelled to effectuate the plain language of the Act which covers Midstate's conduct in this case. We therefore affirm the trial court's finding that Midstate was subject to the Act.

The Rogers request attorney fees for this appeal. They argue that, because appellate attorney fees have been awarded under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)), such fees should also be recoverable under the Act. We agree.

In Warren v. LeMay, 142 Ill. App. 3d 550, 491 N.E.2d 464 (1986), the court reasoned that, given the Consumer Fraud Act's broad remedial purpose, the intent of the damages provision was to compensate a prevailing party for all fees and costs reasonably incurred in connection with his claim. Warren, 142 Ill. App. 3d at 583, 491 N.E.2d at 485. In particular, the court found that, when a claim must be litigated at trial as well as on appeal, attorney fees associated with the appeal must be deemed an integral part of that claim. Warren, 142 Ill. App. 3d at 583, 491 N.E.2d at 485. The court therefore awarded the consumer appellate attorney fees.

Likewise, the Credit Services Act espouses the same type of broad remedial purpose and contains a damages provision which specifically enumerates attorney fees as recoverable. See 815 ILCS 605/11 (West 1998). The Credit Services Act also contains the same "liberal construction" provision as the Consumer Fraud Act. See 815 ILCS 605/16 (West 1998). Moreover, under section 15 of the Credit Services Act, a violation of it also constitutes a violation of the Consumer Fraud Act. 815 ILCS 605/15 (West 1998). Hence, the Credit Services Act remedies are in addition to remedies provided by the Consumer Fraud Act and, as discussed above, appellate attorney fees are already recoverable under the Consumer Fraud Act. Consequently, we hold that appellate attorney fees are recoverable under the Credit Services Act and remand to the trial court for a reasonable determination of such fees.

For the foregoing reasons, the judgment of the circuit court of Knox County is affirmed and the cause is remanded with directions.

Affirmed and remanded with directions.

HOMER, J., Concurring. HOLDRIDGE, P.J., specially Concurring.

PRESIDING JUSTICE HOLDRIDGE, specially Concurring:

I agree with the majority's holding that the plain language of the Credit Services Organizations Act (the Act)(815 ILCS 605/1 et seq. (West 1996)) leads to a Conclusion that our legislature intended the Act to cover retailers who assist their customers in obtaining credit from third-party lenders so that the consumer may purchase the retailer's goods or services. However, I do find some merit in Midstate's argument that the legislature did not intend to subject such retail establishments to the rigors of the Act.

Section 2 of the Act, wherein the legislature declares the general purpose of the Act, states that the purpose of the Act is to protect consumers from "[c]ertain advertising and business practices of some companies engaged in the business of credit services [which] have a financial hardship upon the people of this State ***." (Emphasis added.) 815 ILCS 605/2(b)(West 1996). Based upon this statement of purpose by the legislature, it appears that the intent of the Act was to regulate companies that advertise to consumers as providing credit services and that are engaged in the business of credit services, not businesses offering such services only as an adjunct to retail sales.

Unlike the majority, I cannot find that the Act should apply to retailers based upon policy considerations, a function best left to the legislature or our supreme court. I agree however with the majority's finding that the absence of retail establishments offering assistance to their customers in obtaining credit from the diverse and lengthy list of individuals and institutions exempt from coverage under the Act is dispositive. If the legislature did not intend such retail institutions to be covered, as Midstate maintains, it should have drafted the list of exemptions more carefully. Only upon this basis do I concur that such retail establishments as Midstate were intended by the legislature to be covered under the Act.

19990910


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