Andrews v. Cramer

• Decision Date: 30 December 1993
• Docket Number: No. 1-93-0174,1-93-0174
• Citation: 629 N.E.2d 133,256 Ill.App.3d 766,195 Ill.Dec. 825
• Parties: , 195 Ill.Dec. 825 Elaine C. ANDREWS, Plaintiff-Appellee, v. George C. CRAMER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 133

629 N.E.2d 133

256 Ill.App.3d 766, 195 Ill.Dec. 825

Elaine C. ANDREWS, Plaintiff-Appellee, v. George C. CRAMER, Defendant-Appellant.

No. 1-93-0174.

Appellate Court of Illinois First District, Fourth Division.

Dec. 30, 1993.

[195 Ill.Dec. 826] [256 Ill.App.3d 767] LaSalle Law Centre, Chicago, (John Thomas Moran, Jr., of counsel), for defendant-appellant.

Marvin W. Gray, Chicago, for plaintiff-appellee.

Justice HOFFMAN delivered the opinion of the court:

The defendant, George C. Cramer, appeals from an order granting the plaintiff, Elaine C. Andrews, summary judgment on her complaint alleging breach of a loan contract. We consider: (1) whether the plaintiff admitted the defendant's affirmative defense of usury when she failed to reply to the defense; and (2) whether there was a genuine issue of material fact on the usury defense which would preclude entry of summary judgment. For the following reasons, we reverse and remand.

The plaintiff filed a verified complaint against the defendant and Edward Cramer, who is not a party to this appeal, alleging that they breached a written contract, dated September 1, 1987, to repay a loan of $10,000. An installment note was attached as an exhibit to the complaint, and stated in part "1. That the total payment of $10,700 will be due and owing on or before October 31, 1987. Further, that if the $10,000 is paid prior to the due date, the interest payment of $700 will still be due and owing for said period.

2. That for each and every day that the full payment of $10,700 is not tendered to [the plaintiff] within 30 days subsequent to October 31, 1987, $25 will be assessed for each and every day the loan is not paid in full.

3. That for each and every day that full payment of $10,700 is not tendered to [the plaintiff] 31 days subsequent to November 30, 1987, $50 will be assessed for each and every day the payment of the loan is not paid in full."

The note stated that it was secured by a quit claim deed for real property. In the complaint, the plaintiff alleged that the initial $700 and the subsequent $25 and $50 per day charges were interest. She also alleged that the defendants failed to make any payments on the note and that $14,550 was due; she requested that amount plus additional accruing interest.

The defendant filed a notice of a usury defense as required under section 7 of the Interest Act (Ill.Rev.Stat.1989, ch. 17, par. 6415). He also filed an answer and affirmative defenses which were subsequently amended. In his answer, the defendant admitted that he entered into the contract with the plaintiff in consideration of an obligation to repay the loan and that he did not pay any money on the loan; however, he denied the amount due. The defendant raised several affirmative defenses including usury. He asserted that the contract violated section 4(1) of the act which set a maximum interest rate of 9% per year (Ill.Rev.Stat.1989, ch. 17, par. 6404(1)). The plaintiff was granted leave to respond to the affirmative defenses, but she failed to do so.

The plaintiff moved for summary judgment relying on her complaint, the note, and the defendant's amended answer. She argued that the defendant's pleadings failed to establish any genuine issue of material fact. She asserted that the note provided the defendant was required to repay the $10,000 at an interest rate of 7% per year, the defendant admitted he entered into the contract and did not repay the loan, and the usury defense was without merit because the interest rate charged in the note was under the maximum interest rate of 9% per year as allowed in the act. As a result, the plaintiff requested judgment in the amount of $10,000 plus 7% or $700 per year interest.

In his response, the defendant agreed that there was no issue of material fact, but contended that the charges of $25 and $50 per day were interest which exceeded the 9% maximum yearly interest rate in the act. The defendant moved for summary judgment in his favor on his usury defense asserting that the charges in the note amounted to an interest rate exceeding 70% per year. He relied on the complaint, the contract, and his amended answer.

The trial court granted the plaintiff's motion for summary judgment, denied the defendant's cross-motion, and entered judgment in the plaintiff's favor for $10,000 plus 7% interest per year from the date of the contract. The defendant now appeals.

OPINION

Summary judgment should be granted if the pleadings, depositions, admissions on file, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c).) The purpose of summary judgment is not to decide a question of fact but determine whether one exists. (Gatlin v. Ruder (1990), 137 Ill.2d 284, 148 Ill.Dec. 188, 560 N.E.2d 586.) When parties file cross-motions for summary judgment, they agree that only a question of law is involved and invite the court to decide the issues based on the record. (Allen v. Meyer (1958), 14 Ill.2d 284, 152 N.E.2d 576.) However, the mere filing of cross-motions for summary judgment does not establish that there is no issue of material fact and does not obligate the trial court to render summary judgment. (Harrison v. Village of Sauget (1987), 158 Ill.App.3d 313, 110 Ill.Dec. 628, 511 N.E.2d 805.) On appeal from the entry of summary judgment, the standard of review is de novo. In re Estate of Hoover (1993), 155 Ill.2d 402, 185 Ill.Dec. 866, 615 N.E.2d 736.

The defendant first argues that summary judgment was improper because the plaintiff failed to reply to his affirmative defense of usury and as a result, the defense was admitted. In his motion for summary judgment, the defendant did not make this argument. Because an appellant's failure to raise an issue in the trial court results in a waiver of that issue on appeal (Furgatch v. Butler (1988), 188 Ill.App.3d 1060, 136 Ill.Dec. 616, 545 N.E.2d 140), this issue was waived.

However, even if the issue was not waived, only the facts contained in an affirmative defense would be admitted when a party fails to reply to the defense. "The facts constituting any affirmative defense * * * must be plainly set forth in the answer or reply." (Ill.Rev.Stat.1989, ch. 110, par. 2-613(d).) Usury is an affirmative defense. (Laegeler v. Bartlett (1957), 10 Ill.2d 478, 140 N.E.2d 702; see Commercial Mortgage & Finance Co. v. Life Savings (1989), 129 Ill.2d 42, 51, 133 Ill.Dec. 450, 541 N.E.2d 661.) Although the failure to reply to a usury defense results in an admission of that defense (Watt v. Cecil (1938), 368 Ill. 510, 15 N.E.2d 292; see Ill.Rev.Stat.1989, ch. 110, par. 2-610(b)), only facts alleged in the defense are admitted (Mooney v. Underwriters at Lloyd's, London (1965), 33 Ill.2d 566, 213 N.E.2d 283; Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill.App.3d 574, 485 N.E.2d 1281). In this case, the defendant's affirmative...