FIRST DIVISION

February 3, 2003

JUSTICE McNULTY delivered the opinion of the court:

The Illinois Consumer Fraud and Deceptive Business PracticesAct(Act) (815 ILCS 505/2C (West 1996)) mandates that aprospective merchandise purchaser seeking credit approval fromthe seller must receive a complete refund of any down paymentmade if her credit application is rejected. The Act, however,does not dictate a period within which this refund must occur. In the instant appeal, the parties dispute whether anautomobile dealer's delay of approximately three weeks in issuinga refund raises a sufficient inference of improper conduct underthe Act and under common law fraud principles to requiresubmission of the matter to the trier of fact. We believe thatthe record before us presents issues deserving of a fact finder'sresolution, and accordingly, we reverse the trial court's grantof summary judgment in favor of the automobile dealer.

In late 1998, plaintiffs Angel and Daniel Jones agreed topurchase an automobile from defendant William Buick, Inc., in anarrangement contingent on William's ability to find a lenderwilling to finance the transaction for the couple. The parties'agreement required Angel to leave a down payment of $500 andallowed her to take possession of the vehicle immediately. Shortly thereafter, Mrs. Jones lost her job, and the lenderpreviously secured by William withdrew its commitment. Williaminformed Mrs. Jones of this fact on December 21, 1998, and toldher that she would be required to return the car. On December29, William confirmed to Mrs. Jones that the transaction wouldnot be consummated and suggested that she return the car onMonday, January 4, 1999.

Mr. and Mrs. Jones returned the vehicle on Saturday, January2, and were told that no one was available to sign their refundcheck. The check was not made available on Monday, January 4,and on Tuesday, January 5, an attorney representing Mr. and Mrs.Jones phoned William to request a copy of the contract betweenthe couple and the dealership. Several additional requests byMrs. Jones did not produce the refund, and on January 14,attorneys for the Joneses sent a letter to William alleging fraudand demanding $50,000 to settle the matter. Mrs. Jones retrieveda $500 refund check from William on January 22.

Plaintiffs then filed the underlying action in the circuitcourt of Cook County, alleging that William's practice in suchtransactions was to refuse to return down payments or tradedvehicles to prospective buyers after their credit applicationswere rejected. Plaintiffs' complaint offered several examples ofpretexts allegedly used by the dealer to justify refusal of arefund: that the buyer caused excessive depreciation; the buyercommitted fraud on the credit application; or the buyer would beable to get financing from another lender or for a different car.

The Joneses' complaint cited two other instances ofpurchasers whose down payments had not been refunded followingrejection of their credit applications. It also attachedWilliam's retail installment contract rider, which purported toreserve to the dealer the right to withhold from any refund anassessment for damage to the vehicle while in the possession ofthe would-be buyer.

The complaint alleged that William's intentional refusal toissue refunds to rejected applicants violated the Act and thatits intentional misrepresentations about its refund obligationsconstituted common law fraud. The plaintiffs sought recovery ofthe retainer paid to their attorneys and of expenses incurred inarranging alternate transportation while the refund wasimproperly withheld.

In granting William's motion for summary judgment, the trialcourt reviewed the pretexts allegedly offered by the dealer inrefusing refunds and found no evidence that any such tactic hadbeen used in the Jones transaction. The trial court expresseddoubt regarding the existence of a cause of action for recoveryof attorney fees resulting from the plaintiffs' retention ofcounsel and found that any reasonable business person would havehad cause to delay issuing the plaintiffs' refund check becauseof the demand made by their attorneys.

In defense of the trial court's order, William, citingHayman v. Autohaus on Edens, Inc., 315 Ill. App. 3d 1075 (2000),contends that because it ultimately refunded the full amount ofthe down payment to the Joneses, they suffered no damage and thuslack any basis for a claim of compensation. We believe that theinstant case arises from sufficiently different factual andprocedural circumstances to require a different result from thatreached by the Hayman court.

In Hayman, the plaintiff, objecting to a previouslyundisclosed $299 "service fee" imposed at the termination of hisautomobile lease, filed a class action complaint against thelessee dealer alleging conversion, common law fraud and violationof the Act, despite the fact that the dealer had returned the feethree days after the plaintiff's request. The plaintiff'scomplaint was dismissed by the trial court for failure to state acause of action. He appealed the dismissal of the conversion andcommon law fraud claims, but did not appeal the dismissal of thecount claiming relief under the Act.

This court found the plaintiff's claim for interest for thethree-day delay in refunding the fee to be "too trivial tojustify an imposition upon the administration of civil justice." 315 Ill. App. 3d at 1077-78. The plaintiff's remainingcompensatory damage claim was for attorney fees incurred, butthis court, finding no applicable statutory or contractualprovision creating entitlement to such fees under the common lawclaims advanced by the plaintiff, held that there was no right toany recovery and affirmed the dismissal of the complaint. 315Ill. App. 3d at 1077.

Several factors differentiate the case at bar. Initially,we are not prepared to equate the Hayman defendant's three-daypayment delay with the three-week period at issue here, and wecannot consider the interest that would accrue on the sum due tothe Joneses to be below the level that justifies the attention ofour civil justice system.

The Joneses seek recovery of the expenses they incurred foralternate transportation for the period following the return ofthe car but before refund of the down payment. Reasonableexpenses incurred in mitigation of a loss are properly includedin an assessment of damages. Illinois Structural Steel Corp. v.Pathman Construction Co., 23 Ill. App. 3d 1, 6 (1974). In ourview, the potential for recovery of this damage element furtherdistinguishes the Joneses' claim from that held in Hayman topresent no true controversy.

Finally, unlike the Hayman plaintiff, the Joneses have notabandoned their claim under the Act in favor of continued pursuitof their common law fraud claim. A prevailing party in aproceeding under the Act may recover attorney fees. 815 ILCS505/10a(c) (West 1996); Prior Plumbing & Heating Co. v. Hagins,258 Ill. App. 3d 683, 687 (1994). The Joneses thus possess thestatutory basis for attorney fee recovery found lacking inHayman.

We therefore do not find Hayman to be dispositive of theissues presented by the instant case and do not share the trialcourt's doubt regarding the existence of a cause of action forthe losses claimed by the Joneses. We do find cause for doubt,however, in reviewing the inferences drawn by the trial courtfrom the undisputed facts. An issue should be decided by thetrier of fact and summary judgment denied where reasonablepersons could draw divergent inferences from the undisputedfacts. Pyne v. Witmer, 129 Ill. 2d 351, 358-59 (1989). In theinstant case, the trial court's ruling was based upon two factualinferences which, in our view, could have been drawn in favor ofthe Joneses rather than William.

Because the Joneses were not presented with any of thepretexts alleged by their complaint to be tactics used by Williamin refusing down payment refunds, and because no one from thedealership ever told them that their refund would be withheld,the trial court concluded that there was no evidence of themisrepresentation required as a basis for claims under the Actand under common law fraud principles. We disagree with thisconclusion.

Under Illinois common law, an omission of a material factmay constitute fraud, and a fraud claim may be maintained even inthe absence of an affirmative misleading statement. WashingtonCourte Condominium Association-Four v. Washington-Golf Corp., 267Ill. App. 3d 790, 815 (1994). This principle applies with equalforce to claims brought under the Act. Krautsack v. Anderson,329 Ill. App. 3d 666, 675 (2002). Upon finding that the trier offact could consider an omission to be deceptive, this court willreverse a grant of summary judgment in favor of a defendant in aproceeding under the Act. Sullivan's Wholesale Drug Co. v.Faryl's Pharmacy,Inc., 214 Ill. App. 3d 1073, 1083-84(1991). Webelieve that, if William indeed had a practice of attempting towithhold the down payments of its rejected credit applicants, afact finder could consider the failure to reveal that practice tobe deceptive.

We also find support in the record for a conclusioncontrary to the other factual determination made by the trialcourt: that William's delay in issuing the refund to the Joneseswas a reasonable response to the settlement demand made by thecouple's attorney. As the Joneses note, they had requested therefund for more than 10 days, without success, before the demandwas made upon William, which calls into question the validity ofthe demand as the motivation for the delay. The question ofWilliam's motive, however, like questions of motive, intent orsubjective feeling generally, is particularly inappropriate forresolution by summary judgment motion. Quality Lighting, Inc. v.Benjamin, 227 Ill. App. 3d 880, 884 (1992).

We conclude that the record before us presents facts fromwhich reasonable persons may draw different inferences. Thisconclusion finds additional support in materials presented forour attention by each of the parties: the record of thearbitration hearing that preceded this action's disposition inthe trial court. Following that hearing, the panel of threearbitrators, by vote of 2-1, entered an award in favor of theplaintiffs. We can imagine no more clear demonstration of thepotential for divergent inferences presented by the facts atissue here.

Since summary judgment is clearly disfavored under suchcircumstances, and since we do not believe that the plaintiffshave failed to claim a basis for recovery as a matter of Illinoislaw, we reverse the judgment of the circuit court of Cook Countyand remand the cause to that court for further proceedings.

Reversed and remanded.

O'MALLEY and SMITH, JJ., concur.