PRA III, LLC v. Hund

846 N.E.2d 965, 364 Ill. App. 3d 378, 301 Ill. Dec. 362, 2006 Ill. App. LEXIS 136
Appellate Court of Illinois·Decided March 3, 2006·No. 3-04-0886·Published·Cited by 6 cases

Opinion

JUSTICE McDADE

delivered the opinion of the court:

Plaintiff, PEA III, LLC (PEA), is in the business of buying and collecting bad credit card debts. Defendant, Cheryl Hund, had entered into a credit card agreement with Associates National Bank and agreed to pay interest at 20% on unpaid balances. PEA acquired Hund’s debt by assignment and sought to recover it, charging the same rate of interest as had its predecessor in interest. PEA filed a complaint against Hund to recover the debt, including interest accumulated at the original rate after PEA acquired the debt. Hund filed a counterclaim alleging that by charging interest on the debt it acquired in excess of 9%, PEA violated the Illinois Interest Act (815 ILCS 205/0.01 et seq. (2004)), the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)), and the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1601 et seq. (1988)). The parties filed a stipulated motion to dismiss PEA’s first-amended complaint to collect the debt, acknowledging PEA’s statutorily required payment of Hund’s costs (735 ILCS 5/5 — 114 (West 2004)). In that motion, the parties stipulated that Hund’s counterclaim remains pending. The trial court granted the parties’ motion. Because Hund’s counterclaim is based on an independent statutory cause of action (see, e.g., Stepney v. Outsourcing Solutions, Inc., No. 97 C 5288 (N.D. Ill. 1997)), we hold this appeal is not rendered moot by PEA’s voluntary dismissal.

PEA filed a motion to dismiss Hund’s counterclaim on the grounds it was entitled to collect interest at the rate specified in the charge account agreement between Hund and her credit card issuer. The trial court adopted the reasoning in Olvera v. Blitt & Gaines, No. 03 C 6717 (N.D. Ill. April 26, 2004). There, the court stated that “the Illinois Interest Act regulates the origination of loans and credit agreements by lenders and creditors. It does not deal with the interest an assignee who was not an original party to the credit agreement can charge on a matured debt.” Olvera, slip op. at_. The court found that PEA was not an original party to the credit agreement and granted PEA’s motion to dismiss Hund’s counterclaim. Hund appealed. For the reasons that follow, we affirm.

ANALYSIS

This case requires us to construe several provisions of the Interest Act (815 ILCS 205/0.01 through 9 (West 2004)). “Construction of a statute is a matter of law, which is reviewed de novo.” Hines v. Department of Public Aid, 357 Ill. App. 3d 225, 228 (2005).

“In ruling upon a motion to dismiss, a trial court accepts as true all well-pled facts, as well as all reasonable inferences favorable to the party opposing the motion which may be drawn from the facts. [Citation.] The court does not, however, accept as true mere conclusions of law or fact. [Citation.] The grant of a motion to dismiss will be reviewed on a de novo basis.” Lane v. Anderson, 345 Ill. App. 3d 256, 263, 802 N.E.2d 1278, 1284 (2004).

On December 9, 2005, the United States Court of Appeals for the Seventh Circuit affirmed the Northern District’s decision in Olvera, holding that “section 5 of the Illinois Interest Act does not affect the common law rights of assignees.” Olvera v. Blitt & Gaines, 431 F.3d 285, 289 (7th Cir. 2005). PRA filed a motion to cite the Seventh Circuit’s decision as additional authority to this court. We granted that motion, and in response, Hund submitted to this court her petition for rehearing or rehearing en banc filed with the Seventh Circuit in Olvera. “Illinois courts are generally not bound by federal court decisions construing Illinois statutes that do not involve federal questions.” SI Securities v. Bank of Edwardsville, 362 Ill. App. 3d 925, 932 (2005). Although we agree with the Seventh Circuit’s interpretation of the scope of section 5 of the Interest Act, we note that our decision today is not reliant upon that court’s reasoning.

1. Whether PRA, as Assignee of the Original Creditor,

May Collect the Same Interest as the Assignor

Hund argues that PRA was not permitted to collect interest in excess of 5% or 9% because Illinois law requires statutory authorization before any entity may collect interest and none of the statutory provisions authorizing the collection of greater interest apply to PRA. Hund relies on section 5 of the Interest Act (815 ILCS 205/5 (West 2002)) for her position that no entity may collect interest without express statutory authorization. Section 5 reads as follows:

“No person or corporation shall directly or indirectly accept or receive, in money, goods, discounts or thing in action, or in any other way, any greater sum or greater value for the loan, forbearance or discount of any money, goods or thing in action, than is expressly authorized by this Act or other laws of this State.” 815 ILCS 205/5 (West 2002).

An “ ‘assignment operates to transfer to the assignee all of the assignor’s right, title or interest in the thing assigned. [Citations.] The assignee, by acquiring the same rights as the assignor, stands in the shoes of the assignor.’ ” Community Bank of Greater Peoria v. Carter, 283 Ill. App. 3d 505, 508, 669 N.E.2d 1317, 1319 (1996), quoting In re Estate of Martinek, 140 Ill. App. 3d 621, 629, 488 N.E.2d 1332, 1337 (1986). Despite this well-established rule, Hund argues the phrase “[n]o person or corporation” in section 5 of the Interest Act should be given its plain and literal meaning to include assignees. PRA would then be prohibited from collecting interest unless “expressly authorized by [the Interest Act] or other laws of this State.”

Sections 2 and 4 of the Interest Act address what interest an entity may charge. Those sections read, in pertinent part, as follows:

“Creditors shall be allowed to receive [interest] at the rate of five (5) per centum per annum for all moneys after they become due ***.” 815 ILCS 205/2 (West 2002).
“In all written contracts it shall be lawful for the parties to stipulate or agree that 9% per annum, or any less sum of interest, shall be taken and paid upon every $100 of money loaned or in any manner due and owing from any person to any other person or corporation in this state, and after that rate for a greater or less sum, or for a longer or shorter time, except as herein provided.” (Emphasis added.) 815 ILCS 250/4

Free access — add to your briefcase to read the full text and ask questions with AI

PRA III, LLC v. Hund, 846 N.E.2d 965, 364 Ill. App. 3d 378, 301 Ill. Dec. 362, 2006 Ill. App. LEXIS 136 (Ill. Ct. App. 2006).

846 N.E.2d 965 (PRA III, LLC v. Hund) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related