Keefe v. Allied Home Mortgage Corporation

SUPREME COURT CASES

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State: Illinois

Court: 5th District Appellate

Docket No: 5-07-0463 Rel

Case Date: 07/10/2009

Preview:NO. 5-07-0463
N O T IC E Decision filed 07/10/09. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ ROSEMARY KEEFE, Individually and on Behalf of Others Similarly Situated, ) Appeal from the ) Circuit Court of ) St. Clair County. Plaintiff-Appellee, ) ) v. ) No. 04-L-502 ) ALLIED HOME MORTGAGE CORPORATION ) and ALLIED HOME MORTGAGE CAPITAL ) CORPORATION, ) Honorable ) Michael J. O'Malley, Defendants-Appellants. ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE WEXSTTEN delivered the opinion of the court: The defendants, Allied Home Mortgage Corp. and Allied Home Mortgage Capital Corp., filed this interlocutory appeal, pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)), from the order of the circuit court of St. Clair County denying their motion to compel arbitration and stay the judicial proceedings in this class action lawsuit filed by the plaintiff, Rosemary Keefe. We reverse and remand with directions. BACKGROUND In 1999, defendant Allied Home Mortgage Capital Corp. (Allied Capital), a mortgage broker, assisted the plaintiff and her husband, Frank Keefe, in obtaining a mortgage loan for the refinancing of their property located at 1922 South Gunderson Avenue in Berwyn, Illinois. On May 18, 1999, the plaintiff and her husband signed several documents related to their loan application, including the arbitration rider that is the subject of this appeal, which provides, in pertinent part, "All disputes, claims[,] or controversies arising from or related to the loan ***, including statutory claims, shall be resolved by binding arbitration, 1

disposition of the same.

and not by court action, except as provided under 'Exclusions from Arbitration' below." The parties closed on the loan on July 23, 1999. On September 2, 2004, the plaintiff 1 filed this civil action on behalf of herself and a class consisting of all persons and entities in the United States who used the defendants 2 as a mortgage broker and were charged third-party fees such as credit report fees, appraisal fees, recording fees, messenger/courier fees, and flood certification fees in an amount in excess of their costs to the defendants. The plaintiff alleged that, in processing loans, the defendants engaged third parties to perform certain services, paid for those services, and then charged the borrowers for those services. The plaintiff alleged that the defendants "marked up" the charges (otherwise known as "up charging") for the services and concealed that fact by failing to disclose to the borrowers the actual amounts paid to third parties. The plaintiff asserted claims against the defendants "premised on breach of fiduciary duty, breach of covenant of good faith and fair dealing, unjust enrichment, and consumer fraud." On December 15, 2004, the defendants filed a motion to compel arbitration and stay the judicial proceedings, along with a memorandum in support thereof, based upon the arbitration rider signed by the plaintiff and her husband. On March 21, 2005, the plaintiff filed a memorandum in opposition to the defendants' motion to compel arbitration and stay the judicial proceedings, arguing that the arbitration rider is unenforceable because it is costprohibitive, unsupported by consideration, against public policy, and procedurally and substantively unconscionable. On April 20, 2005, the defendants filed a reply in support of their motion to compel arbitration and stay the judicial proceedings, arguing that the
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The plaintiff's husband is now deceased and has never been a party to this litigation. The plaintiff alleged that defendant Allied Home Mortgage Corp. (Allied Corp.) is

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a parent corporation to Allied Capital or, in the alternative, that the two companies are joint venturers with an agreement to broker and fund mortgages. 2

arbitration rider is enforceable. On April 4, 2007, the plaintiff filed a supplemental memorandum in opposition to the defendants' motion to compel arbitration and stay the judicial proceedings, and on July 5, 2007, the defendants filed a supplemental memorandum in support of their motion to compel arbitration and stay the judicial proceedings. On July 10, 2007, the circuit court held a hearing on the defendants' motion to compel arbitration and stay the judicial proceedings. Following arguments of counsel, the circuit court took the matter under advisement. On July 18, 2007, the circuit court entered an order denying the defendants' motion to compel arbitration and to stay the judicial proceedings, finding that the arbitration rider was illusory and procedurally and substantively unconscionable, particularly in light of the exclusion-from-arbitration section. The circuit court found that the order was appealable, pursuant to Supreme Court Rule 307(a)(1). On August 17, 2007, the defendants filed a timely notice of interlocutory appeal. ANALYSIS Generally, the standard of review for a decision on a motion to compel arbitration is whether there was a showing sufficient to sustain the circuit court's order. Hubbert v. Dell Corp., 359 Ill. App. 3d 976, 981, 835 N.E.2d 113, 119 (2005). However, where, as here, the circuit court rendered its decision without an evidentiary hearing and without findings of fact, the standard of review is de novo . Hubbert , 359 Ill. App. 3d at 981, 835 N.E.2d at 119. In addition, "[t]he determination of whether a contract or a portion of a contract is unconscionable is a question of law, which we review de novo ." Kinkel v. Cingular Wireless LLC , 223 Ill. 2d 1, 22, 857 N.E.2d 250, 264 (2006). We begin our analysis by reviewing the circuit court's finding that the arbitration rider was "illusory" based on the exclusion-from-arbitration provision, which provides, in pertinent part, as follows:

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"EXCLUSION FROM ARBITRATION. This agreement shall not limit the right of the Lender to (a) accelerate or require immediate payment in full of the secured indebtedness or exercise the other Remedies described in this Security Instrument before, during[,] or after any arbitration, including the right to foreclose against or sell the Property; [(b)] exercise the rights set forth in the Uniform Covenant labeled 'Protection of Lenders: Rights in the Property' contained in this Security Instrument[;] or (c) exercise *** the right under the terms of this Security Instrument to require payment in full of the Indebtedness upon a transfer of the Property or a beneficial interest therein. Should Borrower appear in and contest any judicial proceeding initiated by Lender under this Exclusion, or initiate any judicial proceeding to challenge any action authorized by this Exclusion, then upon request of Borrower such judicial proceedings shall be stayed or dismissed, and the matter shall proceed to arbitration in accordance with the section entitled 'Arbitration of Disputes'." "An illusory promise appears to be a promise[] but on closer examination reveals that the promisor has not promised to do anything." W.E. Erickson Construction, Inc. v. Chicago Title Insurance Co., 266 Ill. App. 3d 905, 909, 641 N.E.2d 861, 864 (1994). "An illusory promise is also defined as one in which the performance is optional." W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864. An illusory promise "is not sufficient consideration to support a contract." W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864. The defendants' promise to arbitrate in the present case is neither empty nor optional. See W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864. Although the arbitration rider contains an exclusion-from-arbitration provision, which itemizes certain claims that are not subject to arbitration, it also provides, "Should Borrower appear in and

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contest any judicial proceeding initiated by Lender under this Exclusion, or initiate any judicial proceeding to challenge any action authorized by this Exclusion, then upon request of Borrower such judicial proceedings shall be stayed or dismissed, and the matter shall proceed to arbitration ***." "A contract does not lack mutuality merely because its obligations appear unequal or because every obligation or right is not met by an equivalent counter obligation or right in the other party." Piehl v. Norwegian Old Peoples' Home Society of Chicago , 127 Ill. App. 3d 593, 595, 469 N.E.2d 705, 706 (1984). "The mutuality requirement is satisfied if each party has made a promise to the other and is therefore an obligor and under a duty to the other contracting party." Piehl, 127 Ill. App. 3d at 595, 469 N.E.2d at 706. Under the express terms of the arbitration rider in the present case, the plaintiff has agreed to submit all of her claims to arbitration and may require the defendants to submit all of their claims to arbitration as well. The mutuality requirement is therefore satisfied (see Piehl, 127 Ill. App. 3d at 595, 469 N.E.2d at 706), and the defendants' promise to arbitrate is not illusory (see W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864). Moreover, where, as here, an arbitration agreement is a part of a larger agreement, the consideration for the whole agreement is sufficient to support the subsidiary arbitration agreement as well. See General Motors Acceptance Corp. v. Johnson, 354 Ill. App. 3d 885, 893-94, 822 N.E.2d 30, 37 (2004) ("Consideration is ' "the bargained-for exchange of promises or performances and may consist of a promise, an act[,] or a forbearance." ' [Citations.] ' "While consideration is essential to the validity of a contract, mutuality of obligation is not." ' [Citations.] Therefore, while a mutual promise to arbitrate is sufficient consideration to support an arbitration agreement [citation], that promise need not be equal where any other consideration for the contract, of which the agreement is part, exists [citation]"). The arbitration rider in the present case expressly states that it is "incorporated

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into" the mortgage agreement and that the promise to arbitrate is made "[i]n addition to the covenants and agreements made in the Security Instrument." Therefore, the arbitration rider was a part of the overall loan agreement, and the defendants' obligations under the loan agreement as a whole serve as adequate consideration for the arbitration rider. See Johnson, 354 Ill. App. 3d at 893-94, 822 N.E.2d at 37. We next address the circuit court's finding that the arbitration rider was both procedurally unconscionable and substantively unconscionable. A finding of

unconscionability may be based on either procedural unconscionability or substantive unconscionability or a combination of both. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 99, 854 N.E.2d 607, 622 (2006). As the supreme court explained in Kinkel: " 'Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it ***.' Razor , 222 Ill. 2d at 100, [854 N.E.2d at 622,] citing with approval Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 989[, 408 N.E.2d 403, 410] (1980). This analysis also takes into account the disparity of bargaining power between the drafter of the contract and the party claiming unconscionability. Razor , 222 Ill. 2d at 100[, 854 N.E.2d at 622]. *** In Razor , we cited portions of Frank's Maintenance with approval, but we did not quote at length from that opinion. We do so now: 'Procedural unconscionability consists of some impropriety during the process of forming the contract depriving a party of a meaningful choice. [Citations.] Factors to be considered are all the circumstances surrounding the transaction including the manner in which the contract was entered into, whether each

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party had a reasonable opportunity to understand the terms of the contract, and whether important terms were hidden in a maze of fine print; both the conspicuousness of the clause and the negotiations relating to it are important, albeit not conclusive factors in determining the issue of unconscionability. ***' Frank's Maintenance, 86 Ill. App. 3d at 989-90[, 408 N.E.2d at 410]." Kinkel, 223 Ill. 2d at 22-24, 857 N.E.2d at 264-65. Here, the arbitration rider is not " 'hidden in a maze of fine print' " (Kinkel, 223 Ill. 2d at 23, 857 N.E.2d at 264 (quoting Frank's Maintenance & Engineering, Inc., 86 Ill. App. 3d at 990, 408 N.E.2d at 410)) and is not " 'so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it' " (Kinkel, 223 Ill. 2d at 22, 857 N.E.2d at 264 (quoting Razor , 222 Ill. 2d at 100, 854 N.E.2d at 622 (citing Frank's Maintenance & Engineering, Inc., 86 Ill. App. 3d at 989, 408 N.E.2d at 410))). Instead, the arbitration rider is a separate document, which is prominently titled "ARBITRATION RIDER " (in bold typeface in all-capital letters). In addition, the arbitration rider was signed by the plaintiff and conspicuously notified her (in bold typeface in all-capital letters) as follows: " NOTICE: BY SIGNING THIS ARBITRATION RIDER YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT [OF] THE MATTERS DESCRIBED IN THE ARBITRATION[-]OF[-]DISPUTES SECTION ABOVE DECIDED EXCLUSIVELY BY ARBITRATION, AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT HAVE TO LITIGATE DISPUTES IN A COURT OR JURY TRIAL ." In Kinkel, the court discussed contracts of adhesion as follows: "The Cingular service agreement is a contract of adhesion. The terms,

including the arbitration clause and the class action waiver therein, are nonnegotiable

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and presented in fine print in language that the average consumer might not fully understand. Such contracts, however, are a fact of modern life. Consumers routinely sign such agreements to obtain credit cards, rental cars, land and cellular telephone service, home furnishings and appliances, loans, and other products and services. It cannot reasonably be said that all such contracts are so procedurally unconscionable as to be unenforceable." Kinkel, 223 Ill. 2d at 26, 857 N.E.2d at 266. Moreover, in the present case, although there was unequal bargaining power between the contracting parties and the arbitration rider was a part of a form contract drafted by the defendants, unlike in Kinkel, the arbitration rider was not a contract of adhesion offered to the plaintiff on a take-it-or-leave-it basis. See Kinkel, 223 Ill. 2d at 26, 857 N.E.2d at 266. Instead, paragraph 8 of the arbitration rider specifically states (in bold typeface in all-capital letters) as follows: " THIS IS A VOLUNTARY ARBITRATION AGREEMENT. IF YOU DECLINE TO SIGN THIS ARBITRATION AGREEMENT, LENDER WILL NOT REFUSE TO COMPLETE THE LOAN TRANSACTION BECAUSE OF YOUR DECISION." The plaintiff was aware of the arbitration rider and was not required to agree to arbitration to obtain the loan at issue. The plaintiff also argues that the arbitration rider is procedurally unconscionable because it does not notify her of the cost of arbitration. The arbitration rider provides, in pertinent part, as follows: "This arbitration agreement *** shall be governed by the Federal Arbitration Act (9 U.S.C.

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