Jenkins v. Concorde Acceptance Corp.
| Decision Date | 31 December 2003 |
| Citation | 802 N.E.2d 1270,280 Ill.Dec. 749,345 Ill. App.3d 669 |
| Parties | Ricky JENKINS, Plaintiff-Appellant, v. CONCORDE ACCEPTANCE CORP., Defendant-Appellee. David W. Anderson, Plaintiff-Appellant, v. American Fidelity Mortgage Services, Inc., Defendant-Appellee. Richard Walega and Juanita Walega, Plaintiffs-Appellants, v. Countrywide Home Loans, Inc., Defendant-Appellee. Gary D. Albright and Barbara Albright, Plaintiffs-Appellants, v. Washington Mutual Home Loans, Inc., Defendant-Appellee. Hak Su Kim, Plaintiff-Appellant, v. Alliance Finance Mortgage, Defendant-Appellee. Nicholas Sienkiewcz, Bella A. Munari, Josif Capota and Mariora Capota, and Steven M. Sobnowski, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. RBC Mortgage Company, d/b/a Prism Mortgage Company, Defendant-Appellee. Janet Blair, Evald Narubin and Laima Narubin, Plaintiffs-Appellants, v. Long Beach Mortgage Company, Defendant-Appellee. Vyachesloav Zaritsky and Lisa Bauer, Plaintiffs-Appellants, v. ANB Ambro Mortgage Group, Inc., Defendant-Appellee. Lilli Fetsch Wenzel, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Citicorp Mortgage, Inc., Defendant-Appellee. Aaron Sampson, Plaintiff-Appellant, v. Citimortgage, Inc., Defendant-Appellee. Victor Merino and Blanca Merino, Plaintiffs-Appellants, v. Tamayo Financial Services, Inc., Defendant-Appellee. Amy Johnson, Plaintiff-Appellant, v. Chicago United Mortgage, Inc., Defendant-Appellee. Emily Jackson, Plaintiff-Appellants, v. Harbor Financial Group, Ltd., Defendant-Appellee. Margaret Porter, Plaintiff-Appellant, v. Smith-Rothchild Financial Co., Defendant-Appellee. George K. Kalantzis and Candance M. Kalantzis, Plaintiffs-Appellants, v. World Savings, Defendant-Appellee. James V. Masino, Plaintiff-Appellant, v. 1st Mortgage of Illinois, Inc., f/k/a First National Mortgage Corp., Defendant-Appellee. Douglas R. Messner, Plaintiff-Appellant, v. Elgin Financial Savings Bank, Defendant-Appellee. Sandra Barney, Plaintiff-Appellant. New Century Mortgage Corporation, Defendant-Appellee. Artis L. Simpson and Darlene Simpson, Plaintiffs-Appellants, v. Cole Taylor Bank, Defendant-Appellee. Velma H. Outland, Plaintiff-Appellant, v. Mortgage Lenders Network USA, Inc., Defendant-Appellee. Kenneth Swiatowski, Plaintiff-Appellant, v. Resource Plus Mortgage Corp., Defendant-Appellee. Jesus M. Rubio, Plaintiff-Appellant, v. First Suburban Mortgage Corporation, Defendant-Appellee. Steven Spiro, Plaintiff-Appellant, v. Charter One Bank FSB, Defendant-Appellee. Dennis Butt, Plaintiff-Appellant, v. Comcor Mortgage Corporation, Defendant-Appellee. Luigi Rago and Tina Rago, Plaintiffs-Appellants, v. Presidential Mortgage Company, Defendant-Appellee. Gregory and Margaret Weizborick, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. 1st Advantage Mortgage, L.L.C., an Illinois limited liability corporation, Defendant-Appellee. Anthony P. Blasco, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Ryland Mortgage Company, Defendant-Appellee. John Himmel, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Charter One Financial, Inc., f/k/a St. Paul Federal Bank, Defendant-Appellee. Mark N. Etter, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Citibank FSB, Defendant-Appellee. Richard R. Trebilcock and Ilyia Ludkin, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. GMAC Mortgage Corporation, Defendant-Appellee. Ann L. Coyle, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Preferred Mortgage Associates, Ltd., d/b/a Liberty Home Mortgage, Defendant-Appellee. Delia A. Castillo, Plaintiff-Appellant, v. United Financial Mortgage Corp., d/b/a United Financial Mortgage, Defendant-Appellee. Joseph Branham, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. First Union Mortgage Corporation, Defendant-Appellee. Jacelynn B. Bailey, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Countrywide Home Loans, Inc., Defendant-Appellee. Don A. Smith, Plaintiff-Appellant, v. Central Illinois Bank and Mortgage Services, Inc., Defendants-Appellees. Ronald M. Cortamilla and Nittaya P. Cortamilla, Plaintiff-Appellant, v. Old Kent Mortgage Company, Defendant-Appellee. Irene E. Tate and Dumesle Labranche, Plaintiffs-Appellants, v. Chase Manhattan Mortgage Corporation, Defendant-Appellee. Jeffrey D. Stahl and Karen L. Stahl, Plaintiffs-Appellants, v. American Home Mortgage Corp., d/b/a Mortgageselect, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Edelman, Combs & Latturner, Chicago (Daniel A. Edelman, Cathleen M. Combs, James O. Latturner and Danita Ivory, of counsel), for Appellants.
Mayer, Brown, Rowe & Maw, Chicago (Michele Odorizzi, Lucia Nale, Victoria R. Collado and Jennifer L. Rakstad, of counsel), for Appellees City Mortgage, Inc.
Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLC, Chicago (Mark S. Bernstein, Peter B. Jurgeleit, of counsel), for Appellees in appeal number 1-02-3063.
Stone, Pogrund & Korey, Chicago (James P. Ziegler, of counsel), for Appellees Smith-Rothchild Financial Co. and Harbor Financial Group, Ltd.
Office of the Comptroller of the Currency, Washington, D.C. (Julie L. Williams, Daniel P. Stipano, L. Robert Griffin, of counsel), for Appellee Amici Curiae, Office of the Comptroller of the Currency.
Tabet DiVito & Rothstein LLC, Chicago (Michael I. Rothstein, of counsel) and Robert J. Pratte, Minneapolis, MN, for Appellee Amici Curiae, Mortgage Bankers Association of America, Illinois Mortgage Bankers Association and Community Bankers Association of America.
Office of Thrift Supervision, Chicago (P. Stacy Powers, Special Counsel; Carolyn J. Buck, Chief Counsel; Thomas J. Segal, Deputy Chief Counsel; and Elizabeth R. Moore, Special Counsel, of counsel), for Appellee Amici Curiae, Office of Thrift Supervision.
In these 37 consolidated appeals, plaintiffs appeal from orders of the circuit court of Cook County dismissing then complaints against the defendant financial institutions, from which plaintiffs had obtained mortgages. The complaints alleged that the defendants engaged in the unauthorized practice of law by filling out notes, mortgages and related documents, and charging plaintiffs a document preparation fee for doing so. These complaints also contained claims for money had and received, seeking restitution for the document preparation fees, and claims that defendants' failure to disclose that their acts constituted the practice of law but were not performed by lawyers violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 1998)). The complaints also contain class allegations, but there are no class action issues in these appeals.
On March 8, 2002, the presiding judge of the chancery division of the Cook County circuit court ordered that these claims be heard before one judge. The defendants filed motions to dismiss each of the complaints as failing to state a claim for which relief may be granted, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)). Defendants argued that: (1) the plaintiffs did not have a private right of action to sue for damages for the unauthorized practice of law; (2) defendants had not engaged in the unauthorized practice of law; (3) plaintiffs' claims are barred by the "voluntary payment" doctrine; (4) the Consumer Fraud Act does not allow claims for the unauthorized practice of law; and (5) plaintiffs cannot allege the elements of a Consumer Fraud Act claim in these cases. In addition, several defendants that are federal savings associations and a national bank moved to dismiss the claims against them pursuant to section 2-619 of the Code, arguing that the claims were preempted by the federal law governing these types of institutions. 735 ILCS 5/2-619 (West 2000).
On August 27, 2002, the trial court entered three orders. The first order granted defendants' section 2-615 motions. The second order granted the federal savings associations' section 2-619 motions. The third order granted the national bank's section 2-619 motion. Plaintiffs timely filed notices of appeal to this court.
This court consolidated the appeals and entered an agreed order providing for the filing of consolidated briefs. This court notes that the manner in which these cases were lumped together was less than ideal. In addition to the preemption claims raised by the federal savings association defendants and the national bank defendant, we note that fewer than all of the plaintiffs made claims for both restitution and violations of the Consumer Fraud Act. Moreover, some of the unauthorized practice of law claims involved third-party document preparation companies, whereas most did not. Of those claims involving alleged third-party document preparation companies, one apparently was involved in the transaction, whereas other complaints contained no such allegation. In one instance, the alleged third-party document preparation company was alleged to be an affiliate of the lender. In two other instances, the alleged third-party document preparation company was not named in the notices of appeal.
In short, these appeals demonstrate the practical problems and potential pitfalls in case management that arise from the filing of a multiplicity of roughly similar putative class actions in the circuit court. The...
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