concurring in part and dissenting in part:
Contrary to the majority, I believe that plaintiffs stated a cause of action under section 2 of the Consumer Fraud Act (815 ILCS 505/2 (West 1992)) as well as the Escrow Act (765 ILCS 910/1 et seq. (West 1992)). In affirming the dismissal of plaintiffs’ consumer fraud claim, my. colleagues assert that defendants did not intend to deceive plaintiffs, but merely made an honest mistake. The majority makes these assertions as if the facts had been fully litigated and are now beyond question. What is puzzling about this approach is that the case has not yet gone to trial. We are still at the pleading stage, and the matter is before us in the context of a motion to dismiss under section 2 — 615 of the Code of Civil Procedure (725 ILCS 5/2 — 615 (West 1994)).
A section 2 — 615 motion to dismiss attacks only the legal sufficiency of the complaint. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). When the legal sufficiency of a complaint is challenged by a section 2 — 615 motion, all well-pleaded facts in the complaint are taken as true, and the reviewing court must determine whether the allegations, when construed in the light most favorable to plaintiff, are sufficient to establish a cause of action upon which relief may be granted. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490 (1996). A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87 (1996).
To state a cause of action under section 2 of the Consumer Fraud Act, a plaintiff must allege: (1) a deceptive act or practice by defendant; (2) defendant’s intent that plaintiff rely on the deception; and (3) that the deception occurred in the course of conduct involving trade and commerce. Connick, 174 Ill. 2d at 501. There is no basis for holding that plaintiffs’ complaint fails to meet these requirements.
Under the Consumer Fraud Act, “unfair or deceptive acts or practices” are defined to include the use or employment of any
"misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact ***.” 815 ILCS 505/2 (West 1992).
In the matter before us, there is no dispute that escrow requirements were an important part of plaintiffs’ mortgage transactions with Norwest Mortgage and were therefore material. Plaintiffs clearly allege that the company misrepresented or concealed, suppressed or omitted those requirements by failing to give notice to plaintiffs, as required by law, that they could avoid escrow without payment of a fee and by supplying plaintiffs with information about escrow accounts that was inconsistent with the law. The company obviously intended consumers such as plaintiffs to rely on its misrepresentations, suppressions, and omissions, and the consumers did so rely. According to the complaint, consumers paid the fee the company demanded even though the fee was illegal and the company had no right to collect it.
To suggest that there was no deception or unfairness under these circumstances, as the majority does, requires a view of honesty and justice I do not share and cannot comprehend. If plaintiffs’ allegations are true, as we must assume them to be, what the company did here was to extract money from consumers by violating the law. Under any sensible construction, such conduct falls squarely within the ambit of the Consumer Fraud Act.
My colleagues attempt to justify the company’s behavior on the grounds that the company did not intend to deceive plaintiffs but "merely made an honest mistake.” 179 Ill. 2d at 169. Unlike Lee v. Nationwide Cassel, L.P., 174 Ill. 2d 540 (1996), however, no unsettled principles of law were involved here and no legitimate claim could be made that the defendant’s conduct was lawful. Under the facts alleged in this case, defendant’s conduct was clearly improper and illegal.
In any case, there is no "honest mistake” defense to a claim brought under the Consumer Fraud Act. Although the point has never been squarely addressed by our court, the appellate court has consistently and repeatedly held that even innocent or negligent misrepresentations are actionable. See, e.g., Sohaey v. Van Cura, 240 Ill. App. 3d 266, 291 (1992), affd & remanded, 158 Ill. 2d 375 (1994); Smith v. Prime Cable, 276 Ill. App. 3d 843, 856 (1995); Griffin v. Universal Casualty Co., 274 Ill. App. 3d 1056, 1065 (1995); Warren v. LeMay, 142 Ill. App. 3d 550, 566 (1986). Under the Act, the good or bad faith of the defendant is irrelevant. Harkala v. Wildwood Realty, Inc., 200 Ill. App. 3d 447, 453 (1990). Accordingly, an intent to deceive is not necessary to a finding of unfair or deceptive conduct within the meaning of the statute. People ex rel. Hartigan v. Stianos, 131 Ill. App. 3d 575, 578-79 (1985); Warren, 142 Ill. App. 3d at 566. The majority has no basis in the law for holding otherwise.
For the foregoing reasons, I would allow plaintiffs to proceed with their claim under the Consumer Fraud Act. In all other respects I concur.