Hayes v. Fireman's Fund Mortg. Corp.

• Decision Date: 24 April 1995
• Docket Number: No. 1-92-2324,1-92-2324
• Citation: 649 N.E.2d 582,208 Ill.Dec. 526,272 Ill.App.3d 271
• Parties: , 208 Ill.Dec. 526 Gloria HAYES, Plaintiff-Appellee, v. FIREMAN'S FUND MORTGAGE CORPORATION, now known as Source One Mortgage Services Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 582

649 N.E.2d 582

272 Ill.App.3d 271, 208 Ill.Dec. 526

Gloria HAYES, Plaintiff-Appellee, v. FIREMAN'S FUND MORTGAGE CORPORATION, now known as Source One Mortgage Services Corporation, Defendant-Appellant.

No. 1-92-2324.

Appellate Court of Illinois,

First District, First Division.

April 24, 1995.

John K. Kallman, and Marjory G. Basile, Carl H. von Ende, Miller Canfield Paddock and Stone, Chicago, for appellant.

Daniel A. Edelman, James Eric Vander Arend, Law Offices of Daniel A. Edelman, Lawrence Walner, Lawrence Walner & Associates, Ltd., Chicago, for appellee.

Justice BRADEN delivered the opinion of the court:

Defendant, Fireman's Fund Mortgage Corporation, now known as Source One Mortgage Services Corporation ("Source One"), appeals from an order of the Circuit Court of Cook County, pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308), and argues that the trial court erred in denying a motion to dismiss under the doctrine of forum non conveniens.

We affirm.

Plaintiff, Gloria Hayes, filed a class action complaint in the Chancery Division of the Circuit Court of Cook County. The complaint alleged that Source One had systematically imposed excessive late charges on plaintiff's and fellow class members' mortgages. These mortgages were all guaranteed by the Veterans Administration and can be classified as VA mortgages.

Plaintiff alleges that these late charges are in excess of the late charges permissible and authorized under the terms of the VA form mortgages. It is conceded that under the terms of the mortgages, Source One is permitted to impose late charges on payments, which are more than 15 days late, in an amount equal to 4% of "any installment." The dispute arises concerning the definition of the words "any installment."

The VA note and mortgage form defines "installment" to include only principal and interest due every month. The term "aggregate monthly payment" is defined as the installment plus escrow deposit requirements for taxes and insurance. Plaintiff alleges that Source One overcharged her and class members when imposing late charges by calculating and collecting late charges based on 4% of the aggregate monthly payment including principal, interest, taxes and insurance.

The complaint seeks injunctive relief, damages and declaratory relief. Additionally, it alleges that the imposition and collection of excessive late charges by Source One violates the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)), as well as the corresponding consumer statutes of other states.

Plaintiff is an Illinois resident whose mortgage is serviced by Source One. She alleges to be the class representative of all similarly situated mortgagors who reside throughout all 50 United States and the District of Columbia. Source One is a mortgage loan service company that services approximately 500,000 mortgage loans and is located in Farmington Hills, Michigan.

After the complaint was filed, Source One removed the case to Federal court. The Federal court, however, later granted plaintiff's motion to remand the cause back to the Circuit Court of Cook County. Subsequently, Source One filed a motion to dismiss for forum non conveniens. The motion asserted that Source One had met the legal requirements, under Illinois law, for invoking the equitable doctrine of forum non conveniens. Source One argued that the private interests of the litigants and the public interest require that the cause be litigated in the State of Michigan. Source One elaborated that all the material witnesses and documents are located in Michigan and that the courts in Michigan are less congested than those of Cook County. Moreover, Source One asserted that the case had no particular connection with the State of Illinois except that plaintiff resided in Illinois.

Plaintiff countered this argument by asserting that the cause of action has a substantial nexus with Illinois. Plaintiff resides in Illinois. The property, which the VA mortgage secures, is the plaintiff's home and is located in Chicago, Illinois. The mortgage was negotiated and executed in Illinois. Source One states the 2,145 of the putative class members reside in Illinois, but points out that this number only represents 2.15% of the putative class. Source One further states that Michigan has a greater number of putative class members. Plaintiff does not dispute this statistic but notes that a significant number of Illinois residents hold mortgages serviced by defendant.

Plaintiff notes that Source One makes frequent use of the Illinois court system in seeking foreclosures and judgments against Illinois residents. Source One has filed 810 such actions in the Federal and State courts of Illinois between January 1, 1989, and 1992.

Source One argues that the personnel responsible for servicing these mortgages all reside in Michigan. Plaintiff maintains that the nature of the case is such as to not require many witnesses to be called from Michigan.

The trial court denied Source One's motion to dismiss and remarked that court congestion was not a factor it would entertain because the resources in the chancery division were at least equal to those in Michigan. Moreover, the Michigan judges may have fewer cases but must also divide their attention between civil and criminal matters. The trial court further noted that the case would not produce "a long parade of witnesses" nor did the possible production of documents in Illinois present factors which strongly weigh in favor of the transfer. In addition, the trial court stated that the circuit court must still give deference to plaintiff's choice of forum, regardless of the fact that she sued on behalf of a large nationwide class. Immediately following the trial court's ruling, Source One sought to certify the questions for appeal, pursuant to Supreme Court Rule 308. The trial court certified the question to the Illinois appellate court.

The question certified pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308) is "whether under the facts of this case, fundamental fairness and sensible and effective judicial administration, including the private interests of the litigants and witnesses and the public interest, would be served by dismissing this case, pursuant to the doctrine of forum non conveniens as recognized under Illinois law, for the refiling in the courts of the State of Michigan."

A motion to dismiss for forum non conveniens requires the trial judge to evaluate a variety of factors. "Before dismissing a lawsuit on the grounds of forum non conveniens, the trial court must weigh a variety of factors and conclude that the balance strongly favors the defendant." Japax, Inc. v. Sodick Co. Ltd. (1989), 186 Ill.App.3d 656, 134 Ill.Dec. 446, 452, 542 N.E.2d 792, 798.

The Illinois Supreme Court has consistently held that a trial court is vested with broad discretion in ruling on a forum non conveniens motion. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill.2d 101, 143 Ill.Dec. 274, 554 N.E.2d 209.) The court has stated that "[a] trial court is vested with broad discretion in balancing the various considerations relevant to a ruling on a forum non conveniens motion, and its decision will be reversed only if it represents an abuse of discretion." McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill.2d 278, 117 Ill.Dec. 207, 520 N.E.2d 368.

This court has explained that "the fundamental premise of the forum non conveniens doctrine is that of convenience: convenience of the parties, convenience of the witnesses, convenience of the court and jurors, and the convenience of the taxpayer who bears the expense of maintaining the judicial system." (Stein v. Volkswagen of America, Inc. (1985), 135 Ill.App.3d 127, 129, 90 Ill.Dec. 222, 223, 481 N.E.2d 1022, 1023.) The doctrine of forum non conveniens is an evolving doctrine. The United States Supreme Court's early application of the doctrine in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, has been adopted and relied upon by various state courts, including Illinois. (Weaver v. Midwest Towing, Inc. (1987), 116 Ill.2d 279, 107 Ill.Dec. 685, 507 N.E.2d 838; Whitney v. Madden (1948), 400 Ill. 185, 79 N.E.2d 593; Blakey v. Gilbane Building Co. (1994), 264 Ill.App.3d 626, 201 Ill.Dec. 853, 855, 637 N.E.2d 442, 444.) The seminal case of Gulf Oil Corp. v. Gilbert established the analysis to be used in applying the doctrine of forum non conveniens.

In resolving the forum non conveniens question the court must balance private interest factors affecting the litigants and public interest factors that affect the administration of the courts. (Weaver, 116 Ill.2d 279, 107 Ill.Dec. 685, 507 N.E.2d 838; Mowen v. Illinois Valley Supply Co. (1994), 257 Ill.App.3d 712, 195 Ill.Dec. 868, 629 N.E.2d 176, 178.) Accordingly, the analysis focuses upon two distinct sets of factors, which fall under two general headings: private interest factors and public interest factors. Hall v. CBI Industries, Inc. (1994), 264 Ill.App.3d 299, 201 Ill.Dec. 605, 636 N.E.2d 1037.

The first set of factors, the private interest factors, are those factors that affect the individual litigant. (Hall, 264 Ill.App.3d at 300, 201 Ill.Dec. at 607, 636 N.E.2d at 1039.) The private interest factors that may be considered include: the convenience of the parties; the relative ease of access to sources of proof; the cost of producing willing witnesses, as well as the availability of compulsory process to obtain the attendance of unwilling witnesses; the possibility of the need to view the location where the events giving rise to the action took place; and all other practical problems that make the trial of a case easy, expeditious and inexpensive. Simantz v. Prime Motor Inns, Inc. (1991), 213 Ill.App.3d 813, 815, 157 Ill.Dec. 816, 817, 573 N.E.2d 234, 235.

The public interest factors, as revealed by Gulf Oil Corp. v. Gilbert...