American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber

373 N.E.2d 786, 57 Ill. App. 3d 899, 15 Ill. Dec. 440, 1978 Ill. App. LEXIS 2219
CourtAppellate Court of Illinois
DecidedMarch 1, 1978
Docket77-342
StatusPublished
Cited by10 cases

This text of 373 N.E.2d 786 (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber, 373 N.E.2d 786, 57 Ill. App. 3d 899, 15 Ill. Dec. 440, 1978 Ill. App. LEXIS 2219 (Ill. Ct. App. 1978).

Opinions

Mr. JUSTICE KARNS

delivered the opinion of the court:

The American Buyers Club of Mt. Vernon, Illinois, Inc., brought suit against Eugene and Catherine Zuber to recover *619.40, the largest portion of which, *456, represented the principal balance allegedly due on a promissory note executed for the purpose of securing payment under a “member benefit agreement” with the plaintiff, the remainder being late charges and attorney’s fees. The defendants filed a motion for summary judgment in which they alleged that the member benefit agreement was unenforceable in that it failed to comply with certain provisions of the Illinois Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 121*2, par. 501 et seq.). The lower court granted the defendant’s motion for summary judgment and the plaintiff appeals. Although the defendants have not filed a brief in this case, we have, nevertheless, decided to consider this case on its merits. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

The plaintiff corporation operates a buying service which allegedly gives its “members” the right to purchase various kinds of merchandise at prices substantially below those available at the retail level. The member benefit agreement provides that the “membership fee” is *495.50 whether it be paid in cash or by monthly installments. In the instant cause, the defendants paid the plaintiff an initiation fee of *39.50 and, by the terms of the agreement and the note, agreed to pay the remaining *456 by 24 monthly payments of *19 each. Both the agreement and the note specifically recite that there is no finance charge and that the annual percentage rate of interest is zero. The membership agreement also includes the following provision:

“MEMBER(S) authorize and direct the Club to sell or assign this agreement to any bank or finance company selected by the Club and agree to make all payments to assignee.”

Thus, the agreement is assignable by its terms and the note upon which this action is based is also in negotiable form. Although there is no indication in the case at bar that the note and agreement have been assigned, it may be presumed that an assignment of the defendant’s obligation to a finance company or a bank at a discount was foreseeable.

In their motion for summary judgment the defendants alleged that the entire transaction with the plaintiff constituted a “retail installment transaction” as defined by section 2.5 of the Illinois Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 121M, par. 502.5) and that the member benefit agreement violated two provisions of the Act: (1) that it failed to comply with section 3 (Ill. Rev. Stat. 1973, ch. 12Bz, par. 503) because it did not recite the words “RETAIL INSTALLMENT CONTRACT” at the top of the instrument nor directly above the space reserved for the buyers’ signature; and (2) that it failed to comply with section 4 (Ill. Rev. Stat. 1973, ch. 121/2, par. 504) because the buyers names were not incorporated into the body of the-instrument. By its allowance of the motion for summary judgment, the lower court found the defendants’ allegations to be correct and concluded that the instrument’s noncompliance with the Act rendered the agreement unenforceable.

The plaintiff initially challenges the propriety of the lower court’s allowance of the defendants’ motion for summary judgment because of the defendants’ failure to submit affidavits or to give testimony in support of their motion. Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57) provides that either a plaintiff or a defendant may move for summary judgment in his favor with or without supporting affidavits. The motion should be granted where there is no genuine issue as to any material fact and the movant is entitled to relief as a matter of law. (Carruthers v. B. C. Christopher & Co., 57 Ill. 2d 376, 380, 313 N.E.2d 457, 459 (1974).) In the instant cause there were no disputed issues of fact, but rather, the lower court was presented with a question of law which may be properly decided on a motion for summary judgment (Sidwell v. Sidwell, 28 Ill. App. 3d 580, 583, 328 N.E.2d 595, 598 (4th Dist. 1975)). Thus, our inquiry on this appeal from the grant of summary judgment is whether the defendants were entitled to judgment as a matter of law. In this regard, the controlling considerations are whether the instant transaction falls within the purview of the Illinois Retail Installment Sales Act, and if it does, whether the failure to comply with certain provisions of the Act renders the agreement unenforceable.

We initially note that it is probably erroneous to consider the defendants “members” or their payments under the member benefit agreement “dues.” As we commented on this arrangement in our recent decision in American Buyers Club v. Grayling, 53 Ill. App. 3d 611, 616, 368 N.E.2d 1057, 1061 (1977), the purchasers are members of a club in name only; rather it is a buying service that, for a fee, arranges for the purchase of goods or services. It is obvious that this arrangement constitutes the “furnishing or rendering of services” within the meaning of section 2.5 of the Act (Ill. Rev. Stat. 1973, ch. 12Bz, par. 502.5) which provides:

“ ‘Retail installment transaction means a credit sale of goods or a furnishing or rendering of services by a retail seller to a retail buyer for a deferred payment price payable in one or more installments pursuant to a retail installment contract or a retail charge agreement.”

However, the plaintiff urges, correctly we think, that the absence of a charge for the extension of credit in the defendants’ promissory note removes the transaction from the purview of the Act because a finance charge is listed as one of the elements of a “deferred payment price” as that term is defined in section 2.12 of the Act (Ill. Rev. Stat. 1973, ch. 121*2, par. 502.12) which provides:

“ ‘Deferred payment price’ means the total of (1) the cash sale price of the goods or services purchased, (2) all other charges individually itemized which are included in the amount financed but which are not a part of the finance charge, and (3) the finance charge.”

In interpreting the Illinois Retail Installment Sales Act, a court has no option but to follow the plain language and direction of the statute (R. S. Boston Co. v. Chapman, 131 Ill. App. 2d 385, 266 N.E.2d 767 (1st Dist. 1970)). In this regard, we believe that the above definition indicates a legislative recognition that a retail seller may sell goods or render services for the immediate payment of a certain amount (“cash price”) or permit payment over a period of time for a greater total price (“deferred payment price”).

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American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber
373 N.E.2d 786 (Appellate Court of Illinois, 1978)

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Bluebook (online)
373 N.E.2d 786, 57 Ill. App. 3d 899, 15 Ill. Dec. 440, 1978 Ill. App. LEXIS 2219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-buyers-club-of-mt-vernon-illinois-inc-v-zuber-illappct-1978.