Zwayer v. Ford Motor Credit Co.

279 Ill. App. 3d 906, 1996 WL 280648
CourtAppellate Court of Illinois
DecidedApril 15, 1996
DocketNo. 1—94—1646
StatusPublished
Cited by3 cases

This text of 279 Ill. App. 3d 906 (Zwayer v. Ford Motor Credit Co.) 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
Zwayer v. Ford Motor Credit Co., 279 Ill. App. 3d 906, 1996 WL 280648 (Ill. Ct. App. 1996).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

This is an interlocutory appeal arising from the trial court’s partial denial of defendant’s motion to dismiss. We granted leave to appeal the following two questions certified by the trial court: (1) whether the terms of plaintiffs’ motor vehicle retail installment form contracts permit computation of the plaintiffs’ finance-charge refund by the sum-of-the-digits method when payments are accelerated because of default, and (2) if not, whether section 7 of the Illinois Motor Vehicle Retail Installment Sales Act (815 ILCS 375/7 (West 1994)) permits computation of plaintiffs’ finance-charge refund by the sum of the digits when payments are accelerated because of default.

Plaintiffs are a class of consumers of Ford/Mercury automobiles who financed the purchase of their vehicles by entering into retail installment contracts which were assigned to defendant, Ford Motor Credit Company (FMCC). The contracts were all on a standard form provided by defendant. The front side of the contract shows a box containing the key financing terms and a statement directing the reader to "additional information” elsewhere in the contract. The back side contains the heading "ADDITIONAL AGREEMENTS.” Paragraph A under that heading, entitled "Payments,” states:

"You may prepay your debt at any time. If you prepay in full, you will get a refund of part of the Finance Charge. The refund will be figured by the sum of the digits method ***.”

Paragraph F, entitled "Default,” states that in the case of a default: •

"the Creditor may require you to pay at once all remaining payments less a refund of part of the Finance Charge. He may repossess (take back) the vehicle too.”

Plaintiffs defaulted on their loans and defendant repossessed and sold the vehicles. In determining the amount still due under the contracts, defendant applied the "sum of the digits” or "Rule of 78” method of computing the amount of the finance charge to be refunded. Under the Rule of 78, the interest component of payments-in the beginning of the loan is a higher percentage of the outstanding balance than the agreed-upon interest rate. J. Siegel & F. Grippo, Evaluating Your Client’s Debt Position, National Public Accountant, 42 (September 1993). Under the "actuarial” method, on the other hand, the interest component of each payment is determined by simply applying the interest rate to the outstanding balance. Therefore, the unearned finance charge to be refunded after payment upon acceleration is less under the Rule of 78 than under the actuarial method.

CONTRACT PROVISIONS

The first question certified for our review is whether defendant’s standard form contract allows defendant to apply the sum-of-the-digits method in computing the amount of the finance-charge refund upon acceleration. Defendant claims that acceleration is a form of prepayment, and, therefore, the contract allows application of the Rule of 78 under paragraph A, which provides for a sum-of-the-digits method of computing the refund upon prepayment.

Defendant’s contention is erroneous. In Slevin Container Corp. v. Provident Federal Savings & Loan Ass’n, 98 Ill. App. 3d 646, 424 N.E.2d 939 (1981), a mortgage contract imposed a prepayment penalty if the borrower paid the loan before maturity. The contract also contained a due-on-sale clause which provided that the lender may declare the entire loan due immediately if the borrower sold the secured property. Sometime later, the borrower sold the property, and the lender accelerated the maturity date of the loan. The borrower paid the principal due, but the lender claimed that payment upon acceleration is essentially a prepayment and refused to release the mortgage until the borrower paid a prepayment penalty. Slevin, 98 Ill. App. 3d at 647-48, 424 N.E.2d at 939-40.

The court held that payment upon acceleration is not a prepayment. "[W]here the discretion to accelerate the maturity of the obligation is that of the obligee, the exercise of the election renders the payment made pursuant to the election one made after maturity and by definition not prepayment.” Slevin, 98 Ill. App. 3d at 648, 424 N.E.2d at 941. The court rejected the lender’s contention that the borrower’s sale of the secured property forced the lender to accelerate the loan, noting that the contract afforded the lender the choice of whether to accelerate. Slevin, 98 Ill. App. 3d at 648, 424 N.E.2d at 941. Therefore, the court held that the lender was not entitled to a prepayment penalty. Slevin, 98 Ill. App. 3d at 649, 424 N.E.2d at 941; see also In re LHD Realty Corp., 726 F.2d 327, 331 (7th Cir. 1984) (holding that "[i]t is not appropriate *** for the lender to receive a prepayment premium in lieu of the interest foregone since it has voluntarily waived the unpaid interest in the expectation of accelerated payment of the remaining principal”).

In this case, defendant’s standard form contract specifies that if the borrower voluntarily prepays the loan, the refund will be calculated by the sum-of-the-digits method. This is essentially a prepayment penalty because the sum-of-the-digits method does not provide an accurate approximation of the unearned finance charge. Ballew v. Associates Financial Services Co., 450 F. Supp. 253, 258 (D. Neb. 1976); J. Hunt, The Rule of 78: Hidden Penalty for Prepayment in Consumer Credit Transactions, 55 B.U. L. Rev. 331, 338 (1975). Upon default, however, the contract merely states that the creditor "may require [the borrower] to pay at once all remaining payments less a refund of part of the Finance Charge.” There is no provision specifying that the Rule of 78 will be applied in calculating the refund upon acceleration. Since payment upon defendant’s choice to accelerate the maturity date of the loan is not prepayment, defendant is not entitled to assess a prepayment penalty in the form of a sum of the digits financing charge refund under paragraph A.

Defendant has mistakenly relied on the Federal Truth in Lending Act (TILA) for its proposition that payment upon acceleration is prepayment. While we acknowledge that some of the language in TILA and the case law is consistent with defendant’s contention, TILA involves required disclosures. 15 U.S.C. § 1638(a) (1994). Plaintiffs in this case have not alleged that defendant failed to provide a required disclosure in violation of TILA. Rather, they have brought a state action claiming that under the terms of defendant’s standard form contract, defendant was required to apply the actuarial method, not the sum-of-the-digits method. Therefore, TILA is not relevant to this case.

The language of the contract lacks any provision specifying which method will be employed in calculating the refund upon acceleration. Therefore, the threshold question is whether the contract is ambiguous. Ford v. Dovenmuehle Mortgage, Inc., 273 Ill. App. 3d 240, 244, 651 N.E.2d 751, 754 (1995).

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Bluebook (online)
279 Ill. App. 3d 906, 1996 WL 280648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zwayer-v-ford-motor-credit-co-illappct-1996.