dissenting: I respectfully dissent from the majority’s finding that the lender’s acts were not unconscionable or deceptive, that the lender’s charge of an origination fee for a refinanced loan is permitted, and that the district court’s grant of summary judgment to the lender was proper.
The majority acknowledges that whether a deceptive act or practice has occurred under the Kansas Consumer Protection Act is not a question of law for the court, but rather a question of fact for the jury to decide. Manley v. Wichita Business College, 237 Kan. 427, Syl. ¶ 2, 701 P.2d 893 (1985). It also notes that in the district court the burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in *168favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. The majority acknowledges on appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). Simply stated, I differ.
The underlying policies of the Uniform Consumer Credit Code (UCCC) include furthering consumer understanding of the terms of credit transactions, protecting consumer borrowers against unfair practices, and providing credit to consumers at reasonable cost. K.S.A. 16a-1-102.
The manager of the Wichita Associates’ office testified during his deposition that the $100 maximum origination fee is always charged on every loan whether it is a new loan or a loan that is refinanced by a borrower. In addition to the quarterly national solicitations by the company, the Associates manager testified that the local offices telephone their customers during slow times to see if they are interested in borrowing additional money. In fact, the manager stated that his job depends upon him doing so.
The Associates loan document states that a “prepaid finance charge” in the amount of $100 is to be applied to each refinanced loan. The prepayment clause of the promissory note indicates that in the event of prepayment, “prepaid finance charges” will not be rebated. Associates never informed Gonzales that the “prepaid finance charge” was in fact an origination fee. He believed it was prepaid interest charged for borrowing money. Had he known he was paying a $100 fee to obtain additional small sums, Gonzales would not have refinanced two of his loans.
*169The parties’ dispute centers around what origination fee a finance company can charge when it refinances a loan and adds a small amount to the refinanced loan. K.S.A. 16a-2-401(9)(b) provides that a lender may contract for and charge “a nonrefundable origination fee in an amount not to exceed the lesser of 2% of the amount financed or $100, which fee shall be a nonrefundable, prepaid finance charge.” The statute does not define “amount financed,” nor does it address to what amount the fee should apply in cases of refinancing.
In his petition, Gonzales alleges that it is unlawful to charge an origination fee for a refinanced loan. He asserts that only the new sum of money added to the refinanced loan is subject to the origination fee. He argues that Associates’ actions were unconscionable, deceptive acts as defined in the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., and constituted fraud.
Gonzales argues that the plain meaning of the term “origination fee” is that one can be charged only for expenses of setting up an original file or taking out the original loan, i.e., an origination feé does apply to refinancing an existing loan. He contends that any other interpretation allows for “outrageously high incremental charges for the additional money borrowed.”.According to Gonzales, Associates’ interpretation is contrary to the purpose of the Act.
The plaintiff is not alone in claiming that Associates’ actions were unconscionable. On July 22, 1994, William Catón, the Kansas Consumer Credit Commissioner, wrote a letter to the president of the Kansas Association of Financial Services (KAFS). In the letter, he addressed the practice of charging origination fees on entire refinanced amounts rather than on just new money added to the loan where the refinancing occurs within a short period of time. He stated: “It is the opinion of this office that charging prepaid finance charges on the entire principal of a refinanced loan within a short time period of the original loan is unconscionable.” Noting the Kansas UCCC does not specifically address the issue, the Commissioner said failure to voluntarily cease this practice would result in his seeking a legislative remedy.
*170In response, KAFS’s president wrote that in his view the statutes and regulations are silent on the matter, but that the Association would voluntarily refrain from charging origination fees based upon the entire refinanced amount where the refinancing occurs within 6 months of the original loan. Refinancing that occurs within 6 months of the original loan will still incur an origination fee; it will be based only upon the “new money.” Finally, KAFS agreed that any violation of the agreement by KAFS’s members “should be noted during the course of ordinary compliance exams by the Office of Consumer Credit.”
As a general rule, statutes are construed to avoid unreasonable results. Neither the statute, nor the Act, defines origination fee or how it should be charged when an existing loan is refinanced and additional money is borrowed. Similarly, no Kansas court has decided whether origination fees, which are paid prior to obtaining a loan, may be applied to refinancing consumer loans and whether interest may be charged on origination fees, the new money borrowed, and the amount refinanced during the term of the new loan.
The majority points out that K.S.A. 16a-5-108(3) provides: “For the purpose of this section, a charge or practice expressly permitted by this act is not unconscionable.” The majority fails to note that the statute does not state that origination fees may be based upon the refinanced amount. Under such circumstances, the origination fee is not expressly permitted by the Act. The statute is silent on the matter; therefore, it does not expressly permit origination fees based upon the amount refinanced.
The majority acknowledges that Kansas Comment 4 to K.S.A. 16a-5-108(3) states that even though a practice or charge is authorized by the UCCC, the totality of a particular creditor s conduct may show that the practice or charge is part of unconscionable conduct. Under these circumstances, the labeling of origination fees as “prepaid finance charges” is deceptive. Associates does not inform a borrower that origination fees are charged eveiy time a loan is refinanced. The incremental cost of borrowing small additional amounts is hidden in the written agreement. The failure of the lender to disclose to the borrower that the fee is added to loan principal is deceptive, charging to refinance loans is not expressly *171permitted by the statute, and the manner in which it is done is deceptive.
In Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 758-59, 549 P.2d 903 (1976), we set forth 10 factors by which unconscionability is determined:
“(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position [citations omitted]; (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to a buyer of consumer goods [citations omitted]; (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect [citation omitted]; (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract [citation omitted]; (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate [citation omitted]; and (10) inequality of bargaining or economic power. [Citations omitted.]”
Applying these factors to the case at hand, I find many of the factors exist. The contract between Gonzales and Associates was drafted by Associates. There is no evidence Gonzales could negotiate the terms. In fact, the Associates’ branch manner testified even individuals who had perfect credit could not negotiate an interest rate more than one or two percent less than the statutory maximum.
None of the contracts signed by Gonzales indicated that he was being charged an origination fee. It did indicate he was being charged a “prepaid finance charge.” Gonzales testified that he believed the “prepaid finance charges” were simply interest he was paying in advance. He said he did not know he was being charged origination fees at all. There are two definitions sections in each loan agreement. One states that in the event of prepayment, origination fees will not be refunded; the other states that prepaid finance charges will not be rebated. This is confusing and indicates the presence of factors 6 and 7.
*172The Associates’ branch manager testified that his office policy was to solicit customers to take new loans and the same was true in the solicitation of Gonzales. This was true, according to the manager, despite Gonzales’ falling credit rating. One new refinancing occurred when Gonzales asked, not for more money, but simply to delay payment by one month so that he could pay doctors’ bills for his sick child. Rather than agree to a deferred payment arrangement, Associates told him the only way to accomplish his goal was to refinance his existing loan. Of course, unbeknownst to Gonzales, Associates was going to charge him another $100 origination fee to do so. These facts seem to indicate the existence of the ninth factor above.
As to inequality of bargaining or economic power, the tenth factor, to ask whether there was an inequality of bargaining or economic power is to answer the question. The evidence indicates Associates was the only place Gonzales could borrow money. Gonzales testified that he sometimes had to borrow money to meet his basic living needs.
Concealing the identity of the origination fee by calling it a prepaid finance charge is fraudulent because it conceals the fact that the charge is not refundable when the loan is prepaid.
Based upon the facts, the statutory requirement that unconscionability be determined by the trier of fact, and the standard requiring inferences to be decided in favor of the nonmoving party, summary judgment on the issue of unconscionability was inappropriate.
The district court’s grant of summary judgment on Gonzales’ fraud claim was also improper. It is important to note that the existence of fraud is normally a question of fact and, thus, not appropriate for summary judgment. Gragg v. Rhoney, 20 Kan. App. 2d 123, 126, 884 P.2d 443 (1994), rev. denied 256 Kan. 994 (1995). We have stated that fraud may arise by the concealment of facts which legally or equitably should be revealed, as well as by affirmative representation. Tetuan v. A.H. Robins Co., 241 Kan. 441, 465, 738 P.2d 1210 (1987) (citing Citizens State Bank v. Gilmore, 226 Kan. 662, 667, 603 P.2d 605 [1979]). Under the UCCC, there is a legal or equitable duty to communicate in respect of *173which Associates could not be innocently silent. See Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987) (citing DuShane v. Union Nat’l Bank, 223 Kan. 755, 759, 576 P.2d 674 [1978]).
K.S.A. 16a-2-401(9)(b) calls the authorized origination fee a “nonrefundable, prepaid finance charge.” None of the documents indicated, nor was Gonzales informed, that he had been charged an origination fee. Gonzales testified that he believed the stated prepaid finance charge was simply an interest payment, and if he had known he was required to pay $100 to obtain a relatively small amount of money, he would not have done so.
Gonzales argued that Associates’ half-truths and its activities made the disclosures fraudulent. Gonzales alleged that Associates had a duty to disclose it was charging him an origination fee. Without this disclosure, Gonzales was not capable of understanding the effects of Associates’ activities. Gonzales’ active fraud claims revolve around the fact that Associates’ pattern and practice was to encourage Gonzales (and all customers) to continuously refinance existing loans. These continuous refinancings provide Associates the opportunity to charge an additional $100 origination fee labeled a prepaid finance charge, improperly include the origination fee in the amount financed, and receive an incremental interest rate higher than allowed by law, which was not disclosed in any document.
Gonzales alleges this is fraud through silence. In support of this, Gonzales first points out Kansas law permits fraud through silence claims. I acknowledge that the party failing to disclose must have a legal or equitable duty to disclose in order for the claimant to state a valid claim for fraud through silence. Associates’ duty to disclose is well stated in Restatement (Second) of Torts § 551 (2)(b), (c), and (e) (1977), which provides that a party has a duty to exercise reasonable care when
“(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and,. . .
“(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
*174“(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.”
Gonzales asserts that the promissory notes are ambiguous; thus, the duty to exercise reasonable care under the Restatement exists between Associates, the lender, and Gonzales, the borrower.
Gonzales’ assertion is supported by courts of other jurisdictions. In Emery v. American General Finance, Inc., 71 F.3d 1343 (7th Cir. 1995), Chief Judge Posner, writing for a 2-1 majority, overturned the district court for granting a motion to dismiss on a fraud count in a situation similar to the one here. Emery borrowed money from American General Finance (AGF) and was making her payments on time. After approximately 6 months, AGF wrote her and told her it had more money for her if she wanted it. She did, and AGF refinanced her loan. In doing so, AGF gave Emeiy a check for $200 in addition to paying off her original loan. This extra $200 cost Emeiy about $1200 over the course of her loan. If she had simply taken out a new loan rather than refinancing her old one, it would have cost her considerably less — something AGF failed to disclose. Chief Judge Posner calculated that the interest imposed by AGF was something above 110 percent.
The majority also states that there is nothing fraudulent about calling an origination fee a prepaid finance charge. The majority notes that Regulation Z requires such, and K.S.A. 16a-2-401(9)(b) calls it a prepaid finance charge. The majority is correct in that K.S.A. 16a-2-401(9)(b) states an origination fee “shall be a nonrefundable, prepaid finance charge.” However, it does not state that an origination fee shall be called a prepaid finance charge. Neither does Regulation Z require an origination fee to be called a prepaid finance charge. In fact, a reading of the definitions contained therein leads to the conclusion that the origination fee charged to refinance existing loans is not a prepaid finance charge under Regulation Z.
12 C.F.R. 226.2(23) (1998) provides:
*175“Prepaid finance charge means any finance charge paid separately in cash or by check before or at consummation of a transaction, or withheld from the proceeds of the credit at any time.”
Gonzales neither prepaid an origination fee before or at consummation of the transaction. Nor was the origination fee withheld from the proceeds of credit extended to Gonzales. Associates improperly included the $100 prepaid origination fee in the amount loaned and then charged interest for the $100 loaned.
In Noel v. Fleet Finance, Inc., 971 F. Supp. 1102 (E.D. Mich. 1997), a mortgage broker received a “yield spread premium” for soliciting mortgages on behalf of the lender. The lender passed this on to the buyers in the form of higher interest rates charged on the loan. Thus, there was no separately paid fee by the borrower before or at the consummation of the transaction. Rather, the premium was paid in the form of higher interest rates over the course of the loan. Plaintiffs sued defendants for a violation of the federal Truth-in-Lending Act (TILA) in that the yield premium was not disclosed as a prepaid finance charge. The Noel court dismissed this claim, pursuant to Fed. R. Civ. Proc. 12(b)(6), holding that the yield spread premium could not be considered a prepaid finance charge under Regulation Z because it was to be paid over the term of the loan rather than before or at the inception of the loan. 971 F. Supp. at 1112.
12 C.F.R. § 226.18 (1998) sets forth what information shall be disclosed by lenders. It requires a disclosure to state the amount financed. This figure is calculated by determining the principal loan amount, adding any other amounts financed, and subtracting the prepaid finance charge. A review of Associates’ promissory notes indicates there was no subtraction of a prepaid finance charge as required by Regulation Z.
Subsection c of § 226.18 requires an itemization of the amount financed to include the amount of any proceeds distributed directly to the consumer, any amounts credited to the consumer’s account, any amounts paid to another on behalf of the consumer, and the prepaid finance charge. While Associates discloses the prepaid finance charge in this section, it specifically states it is not part of *176the “amount financed.” Either the majority is wrong, or Associates did not comply with Regulation Z in its promissory notes.
In fact, when reviewing the promissory notes, it is not possible to determine how the prepaid finance charge (origination fee) is computed or how it is paid. Each note discloses the amount paid to Gonzales, the amount paid the insurance company, and the amount paid on Gonzales’ old account. Adding up these amounts gives the “amount financed.” Nowhere is the prepaid finance charge added in. Gonzales did not pay the fee in cash at the time of the transaction. It is not specifically included in the amount financed or the “total of payments.” It is simply not possible for a borrower to ascertain how the origination fee is paid from the face of the promissory note.
Here, the origination fee is spread over the term of the loan. It is not prepaid by the debtor. Therefore, the “origination fee” is not a prepaid finance charge as that term is used in Regulation Z. Consequently, the majority’s contention that Regulation Z requires lenders to call an “origination fee” that is included in the money loaned a “prepaid finance charge” is wrong.
There is no statutory requirement that an origination fee be called a prepaid finance charge. In fact, the definition of prepaid finance charge contained in Regulation Z seems to preclude its use for an origination fee as charged in this transaction. There is no good reason not to call the origination fee what it is. Whether Associates did not want its customers to understand they were continually being charged origination fees when they refinanced is a question of fact not subject to summary judgment.
Gonzales also claims that Associates’ actions violate the KCPA. K.S.A. 50-626 of that Act provides, in part:
“(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
(2) the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact;
(3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact.”
*177Associates concealed the cost of refinancing, and the concealment was willful as evidenced by Associates’ practice of soliciting customers to refinance. Concealing origination fees and the higher incremental expense of borrowing small amounts is a failure to disclose the true loan balance and is deceptive behavior.
In defense of its actions, Associates claims it fully complied with TILA requirements and thus its behavior cannot be deceptive. It should be again noted that the origination fees contemplated by state statute and defined by Regulation Z are not prepaid finance charges added to a refinanced loan.
In Manley v. Wichita Business College, 237 Kan. 427, 701 P.2d 893 (1985), plaintiff brought TILA and KCPA claims against defendant. Manley visited Wichita Business College in response to an advertisement for a geologic drafting class. When talking to the recruiter, whose title was “career counselor,” Manley was told the regular drafting course, which was 10 times more expensive, was the much better course.
Wichita Business College challenged a jury verdict against it for violation of the TILA and the KCPA. The Manley court noted that Wichita Business College’s acts in steering Manley towards the more expensive course violated the Federal Trade Commission’s (FTC) regulation against bait-and-switch tactics found at 16 C.F.R. § 238.0 (1998). 237 Kan. at 436. Additionally, the court found the titling of a recruiter as a career counselor violated another FTC regulation prohibiting such designations. 237 Kan. at 433. The Manley court found the jury verdict on the two KCPA counts to be supported by the violation of the FTC regulations. 237 Kan. at 434, 437.
In Weatherman v. Gary-Wheaton Bank, 286 Ill. App. 3d 48, 676 N.E.2d 206 (1996), plaintiffs brought a class action against a bank for failing to disclose it would charge a mortgage assignment fee. The Illinois Appellate Court took the case on a certified question as to whether this nondisclosure was a violation of the Illinois Consumer Fraud and Deceptive Practices Act. The Weatherman court first noted that the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq. (1994), requires advance disclosure of settlement costs to home buyers. Defendant did not *178disclose this fee in its RESPA disclosures. Instead, defendant made a “gross estimate” of anticipated settlement costs. 286 Ill. App. 3d at 57. Because the gross estimate concealed the identity of the fee, the Weatherman court found the RESPA violation to be deceptive. 286 Ill. App. 3d at 60.
In re Tucker, 74 Bankr. 923 (Bankr. E.D. Pa. 1987), is factually similar to this case. There, a debtor was charged a $100 service charge for borrowing money. This charge was permitted by statute and, similarly by statute, lenders were not required to refund it when the borrower refinanced or prepaid the loan. Because of the aforementioned statutes, the Tucker court did not make a determination that finance charges were usurious as a result of the failure to refund the service charge when the debtor refinanced. However, the court did state: “This ruling . . . does not foreclose a UDAP [unfair or deceptive acts or practices] claim challenging this practice on these or similar facts where it could be proven that unfair advantage was taken of unsophisticated borrowers.” 74 Bankr. at 928.
Did the borrower understand the terms of the credit transaction? Was the borrower protected from unfair practices?
Associates did disclose that it was charging an additional $100 prepaid finance charge to refinance existing loans. It did not disclose that in fact this $100 fee was an origination fee for new loans of less than $500, nor did it explain how this fee was paid. The promissory note does not state that the origination fee was included in the note. This led Gonzales to believe that the origination fee was interest he paid in advance out of the proceeds of the loan. Whether this action taken by a seller was deceptive under the KCPA is a question for the trier of fact. The district court erred in ruling as a matter of law that defendant’s conduct was not unconscionable under the UCCC. The majority was wrong to affirm the district court.