1-04-0400

PRESIDING JUSTICE REID delivered the opinion of the court:

Paul Van Der Molen brought this action to recover damages for violation of sections 4(2)and 6 of the Illinois Interest Act (815 ILCS 205/4(2) 6 (West 2002)). He also sought damagesfor alleged violations of sections 2 and 10a(a) of the Consumer Fraud and Deceptive BusinessPractices Act (Consumer Fraud Act) (815 ILCS 505/2, 10a(a) (West 2002)). Van Der Molenclaims Washington Mutual Finance, Inc. (WMFI), Washington Mutual Mortgage Securities Corp.(WMMS), and Washington Mutual, FA (WMFA) (known collectively as Washington Mutual),charged illegal, concealed and misrepresented interest in his residential mortgage loan transaction. He also claims Washington Mutual breached the contract between the parties for failure tocomplete a compromise of those claims as agreed between the parties prior to the filing of thisaction. Counts I and II of the second amended complaint were dismissed based on defendants'motion pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(West 2002)). Count III was dismissed pursuant to section 2-615 of the Illinois Code of CivilProcedure (735 ILCS 5/2-615 (West 2002)). For the reasons that follow, we affirm.

In October 1999, Van Der Molen applied for a $750,000 loan to be secured by amortgage on his personal residence. That loan closed on December 23, 1999. At the time of theapplication for the loan, Van Der Molen received and signed a receipt for a disclosure prepared byWashington Mutual. According to Van Der Molen, the disclosure was prepared in blank. Heclaims he received no further disclosure until the time of the closing. Van Der Molen also claimsthat the loan application was made to an organization identified as Washington Mutual. At thetime of the loan, WMFI and WMMS each used the name "Washington Mutual." Both WMFI andWMMS were operating under the authority conferred upon them by the Illinois Secretary ofState. WMFI and WMMS have, since the filing of the original complaint, identified WMFA as anentity not subject to registry with the Illinois Secretary of State that was the entity ultimatelydisbursing the funds pursuant to the loan. Van Der Molen claims he was not made aware thatWMFA would disburse the funds until the closing date.

Washington Mutual disputes Van Der Molen's explanation of the facts chronicled thus far. According to Washington Mutual, Van Der Molen received full disclosure of the fees that couldbe assessed against him in connection with this mortgage loan. According to Washington Mutual,the fact that WMFA would be the lender for the loan was clearly evidenced on the mortgage.

Van Der Molen refinanced his 1999 loan in February 2001. He was charged andsubsequently paid a prepayment penalty of $15,000 as part of the amount required to pay off thatloan. Van Der Molen filed the original complaint on November 27, 2002. That complaint wasamended on March 19, 2003, to add WMFA as a defendant. On August 13, 2003, the trial courtstruck the amended complaint with leave to plead over. On September 10, 2003, Van Der Molenfiled the instant second amended complaint, which added a third count for "accountstated/accord." In count I, Van Der Molen alleged that the imposition of the prepayment fee andthe inclusion, after the second monthly payment, of a variable interest rate violated the regulationsof the Illinois Interest Act. In count II, Van Der Molen alleged that the prepayment fee andvariable interest rate constituted a violation of the Consumer Fraud Act. Finally in count III, VanDer Molen alleges that the defendants agreed to repay the prepayment fee but failed to adhere tothat agreement.

The trial court subsequently entertained the defendants' motion to dismiss. Based onsection 2-619, Washington Mutual moved to dismiss, claiming state law regulating the impositionand disclosure of loan-related fees is expressly preempted by the Home Owners' Loan Act (12U.S.C.