dissenting:
Let me begin this dissent with identification of the issues as drawn by the plaintiffs. An examination of the plaintiffs’ complaints and briefs makes it unmistakably clear that they are alleging fraud on the part of the defendants. To illustrate, the complaints allege that the defendants "deceptively and fraudulently misrepresented the status of [the plaintiffs] and class members by having them sign as 'co-buyers’ rather than 'guarantors of collectability.’ ” I make this observation to dispel any notion that we are concerned with something other than fraud that might arise from the majority’s statement that the "statute prohibits 'unfair or deceptive acts or practices,’ not just acts or practices which might rise to the level of being fraudulent under the common law.” (277 Ill. App. 3d at 518-19.) The majority also points out that the "term 'unfair practice’ is inherently insusceptible to precise definition and effective regulation of the Consumer Fraud and Deceptive Business Practices Act requires that it remain flexible” (277 Ill. App. 3d at 519, citing Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 290, 430 N.E.2d 1012, and People ex rel. Hartigan v. All American Aluminum & Construction Co. (1988), 171 Ill. App. 3d 27, 524 N.E.2d 1067). Neither case is factually applicable here.
In Scott, the Attorney General filed suit to enforce a subpoena on the defendant association which conducted childbirth classes. The defendant alleged that the Consumer Fraud Act did not apply to it; that the Act was void for vagueness and that the Act violated other constitutional provisions. There was no complaint under the Act involved, let alone insufficiency. Contrary to the majority’s conclusion that Hartigan upheld a "similar complaint,” I find that the complaint in Hartigan has no resemblance to the complaint before us. In Hartigan, the complaint alleged that the defendants negligently performed home remodelings in violation of their contracts with the homeowners. Let there be no mistake, therefore: the issue here is whether the complaints allege facts that establish fraud on the part of the defendants; and I maintain that they do not.
In Area, discussed by the majority, the court held that the complaint alleged a cause of action based upon common law fraud, and the majority notes the court did so even though the appellants "had not formally pled such a cause of action.” (277 Ill. App. 3d at 516.) The appellants not only did not plead such a cause of action, they did not even raise the question in their briefs in the trial court or in the appellate court. In any event, for reasons to be explained later, I disagree that the complaint in Area established common law fraud. In Taylor v. Trans Acceptance Corp. (1994), 267 Ill. App. 3d 562, 641 N.E.2d 907, relied on by the majority, the court held, without any analysis other than a passing reference to Area, that the complaint alleged a cause of action under the Consumer Fraud Act.
The majority also cites Barco Auto Leasing Corp. v. House (1987), 202 Conn. 106, 520 A.2d 162, and Sheffield Commercial Corp. v. Clemente (2d Cir. 1986), 792 F.2d 282. In Barco, the lender filed an action against the borrowers to recover a deficiency under a leasing agreement for the rental of an automobile. The defendants counterclaimed and sought a rescission of the agreement. The issue in the case was whether the trial court "properly calculated the amount of damages to which the defendants were entitled upon rescission” of the contract. (Barco, 202 Conn, at 107, 520 A.2d at 163.) The court held that the failure of the seller to comply with the requirements of the statute barred the seller from claiming an offset against the buyer’s rescissory damages. The court did not hold that the buyers had an independent cause of action for damages and attorney fees for the seller’s violation of the statute.
In Sheffield, a lessor of an automobile sued the lessee, who alleged in defense that the lease agreement violated the New York motor vehicle retail installment sales statute. The Second Circuit Court of Appeals stretched mightily even to reach the issue of whether the lease agreement conformed to the provisions of the statute because the question was raised for the first time on appeal. The court held that the seller might be subject to civil and criminal liabilities under the statute. I find it very significant that the court also held that "[flailure to comply with M.V.R.I.S.A. does not, however, render a contract completely unenforceable, rather it triggers the imposition of specified statutory penalties.” Sheffield, 792 F.2d at 287.
What is the fraud alleged here? It is the allegation that when the defendants told the plaintiffs they were buyers and should sign as buyers the defendants made a misrepresentation. The fact that the defendants may have misconstrued the statute, of course, is irrelevant, according to the plaintiffs. And if the defendants misconstrued the statute, they were in impressive company: the three appellate judges who decided Comer.
In Randels v. Best Real Estate, Inc. (1993), 243 Ill. App. 3d 801, 612 N.E.2d 984, the plaintiff alleged that the defendants had violated the Consumer Fraud Act by failing to disclose the restrictions in an ordinance on the property purchased by the plaintiff. The appellate court affirmed the judgment for the defendants, saying this:
"However, a plaintiff must show that the deceptive act related to a material fact. [Citations.] A deceptive representation or omission of law generally does not constitute a violation of the Consumer Fraud Act because both parties are presumed to be equally capable of knowing and interpreting the law. [Citation.]” (243 Ill. App. 3d at 805.)
(See also City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 467 N.E.2d 610 (false allegations by defendant that property was properly zoned was insufficient to maintain action under the Consumer Fraud Act).) In this case, the plaintiffs are presumed to be just as capable of knowing and interpreting the statute as the defendants are.
The plaintiffs have also cited Heastie v. Community Bank (N.D. Ill. 1989), 727 F. Supp. 1133. Apart from the fact that we are not bound by the holding of the district court and that some factual distinctions exist between that case and the one before us, we note that the defendants in Heastie did not raise the argument that the complaint alleged misrepresentations of law rather than fact. The defendant simply maintained that it did not intend to mislead.
Consider the facts of the cases before us: the plaintiffs went to' the sellers with their friends, who wanted to buy cars. The sellers would not sell the cars to the plaintiffs’ friends because the sellers felt the plaintiffs’ friends were poor security risks. The plaintiffs helped their friends get the cars by signing agreements which the plaintiffs are presumed to have read. The agreements said that the plaintiffs were the buyers of the car. The plaintiffs’ friends failed to pay. The plaintiffs do not have to pay. The plaintiffs are not content with the defense to the defendants’ claims; they insist that they are entitled to "appropriate compensatory and punitive damages”; an injunction; and attorney fees.
I strongly disagree that the plaintiffs should be entitled to any cause of action. It has been held that the defense of estoppel is a shield, but may not be used as a sword. (Malloy v. City of Chicago (1938), 369 Ill. 97, 15 N.E.2d 86.) I see no reason why the same holding should not apply to the plaintiffs’ claims. I recognize that the Consumer Fraud Act is to be construed liberally to protect consumers, but I refuse to believe that the legislature intended that it be a cash cow for persons like the plaintiffs who sign contracts with eyes wide open.
For these reasons, I dissent. I would affirm the judgment of the circuit court.