specially concurring:
I agree with the majority’s determination that the plaintiff in this case did not sufficiently plead a cause of action under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. (West 1994)) against the assignee of the contract, Chrysler Financial Corporation (Chrysler). I therefore concur in the result. I believe, however, that the majority has unnecessarily relied upon our holding in Lanier when the resolution of this case is dictated solely by the language of section 1641 of the Truth in Lending Act (TILA) (15 U.S.C. § 1641 (1994)).
Unlike the case at hand, Lanier involved a suit against a creditor directly, as opposed to an assignee, and whether the fact that the creditor engaged in conduct specifically authorized by TILA was a defense to liability under the Consumer Fraud Act. The loan agreement in Lanier referred to “the Rule of 78’s” to explain the method of calculating the creditor’s accrued interest if the borrower prepaid the outstanding balance. The creditor provided no further explanation of the functioning of the Rule of 78’s. After prepaying the loan amount, plaintiff filed suit under the Consumer Fraud Act, partially alleging that the lender’s failure to explain the mathematical operation of the Rule of 78’s constituted a deceptive business practice under the Consumer Fraud Act. The lender responded that simple reference to the Rule of 78’s method was a sufficient disclosure under TILA, according to the Federal Reserve Board, and compliance with TILA should preclude liability under the Consumer Fraud Act.
In holding that specific compliance with TILA precluded liability under the Consumer Fraud Act, this court noted that section 10b(1) of the Act provides that it does not apply to “ ‘[ajctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States.’ ” (Emphasis added.) Lanier, 114 Ill. 2d at 17, quoting Ill. Rev. Stat. 1981, ch. 121½, par. 270b(1) (now 815 ILCS 505/10b(1) (West 2000)). The method of disclosure for the Rule of 78’s used by the creditor in Lanier was specifically authorized by the Federal Reserve Board. I therefore agree with plaintiff that Lanier plainly limited exemptions from liability to conduct that is directly required by TILA as opposed to conduct that does not violate TILA. I also agree with plaintiff that the appellate court (and now this court) has vastly extended our holding in Lanier by finding that if there is no technical violation of TILA, then the conduct is specifically authorized by TILA. This interpretation dramatically expands the Lanier holding and leaves ajar a door of escape for creditors who are being sued directly by borrowers. Simply put, under the majority’s holding in this case, if a creditor is able to show that it has not engaged in conduct violative of TILA, there may not be a remedy for a plaintiff for an unfair or deceptive business practice under the Consumer Fraud Act. Under the Lanier holding, a creditor had to be affirmatively complying with a mandate of TILA in order to be so exempted from liability under the Act, and I believe that is the only viable rule.
In my view, the Pawlikowski court arrived at the appropriate conclusion with regard to assignees by, in effeet, simply relying on the plain language of section 1641. Under that section, an action may be brought against an assignee “ ‘only if the violation *** is apparent on the face of the disclosure statement.’ ” Pawlikowski, 309 Ill. App. 3d at 558, quoting 15 U.S.C. § 1641(a) (1994). Thus, unless there is such a patent violation, or unless the plaintiff can show active and direct, preassignment fraud on the part of the assignee, then there is no viable cause of action for the plaintiff against the assignee. In such cases as in the case at hand, a court need not move beyond these two specific avenues of inquiry.
For these reasons, I concur only in the result arrived at by the majority and I do not endorse the reasoning employed to reach that result.
CHIEF JUSTICE HARRISON joins in this special concurrence.