concurring in part and dissenting in part:
I concur with the majority’s holding that plaintiffs’ complaint was insufficient to state a cause of action for a violation of the Consumer Fraud Act based upon defendant’s charging an escrow suspension fee. Contrary to the majority, however, I believe that defendant’s actions with regard to the mortgage assignment recording fee violated the Consumer Fraud Act. Therefore, I would answer the certified question in the affirmative and affirm the appellate court’s judgment in full.
The Consumer Fraud Act should be liberally construed. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 503 (1996). Additionally, this court has stated that when ruling on a motion to dismiss because the claims are barred by other affirmative matter that avoids the legal effect or defeats the claim (735 ILCS 5/2 — 619(a)(9) (West 1994)), the trial court must interpret all pleadings and supporting documents in the light most favorable to the non-moving party. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). Considering these tenets, I would find that plaintiffs adequately alleged a violation of the Consumer Fraud Act so as to withstand defendant’s section 2 — 619 motion to dismiss the mortgage assignment recording fee claim. Plaintiffs’ complaint alleged that defendant had engaged in unfair and deceptive acts, in violation of section 2 of the Consumer Fraud Act, in that the mortgage assignment fee was a “charge for recording [defendant’s] assignment to a third party[,] *** a transaction which is not part of its making a loan to the borrower.” Although plaintiffs were informed more than two months before closing that their loan would be sold and transferred at or after closing, they were not informed that the cost of recording that transfer would be charged to them.
Whether conduct is unfair under the Consumer Fraud Act is determined on a case-by-case basis. See Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 313 (1996). As the majority notes, the Consumer Fraud Act defines “unfair or deceptive acts or practices” to include the use or employment of, inter alia, 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). I agree with' plaintiffs, and with the appellate court majority, that not only was defendant guilty of deception but also that, without plaintiffs’ prior knowledge and consent, “assessing them a fee that was not theirs to pay was unfair under the Consumer Fraud Act.” 286 Ill. App. 3d at 60.
Plaintiffs’ complaint asserted that the omission to tell them of the fee until the closing and the misrepresentation that the fee was a required charge which was necessary to close and fund the loan violated the Consumer Fraud Act. Plaintiffs further alleged that defendant intended them to rely on this omission and misrepresentation. An omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. Connick, 174 Ill. 2d at 504; 815 ILCS 505/2 (West 1992). “A material fact exists where a buyer would have acted differently knowing the information, or if it concerned the type of information upon which a buyer would be expected to rely in making a decision whether to purchase.” Connick, 174 Ill. 2d at 505.
Plaintiffs adequately pled a violation of the Consumer Fraud Act based on a material omission by defendant, where they alleged that had they known before paying the lock-in fee that the lender would charge them the mortgage assignment fee, they would have pursued refinancing with other lenders who did not require payment of this fee. See Butitta v. First Mortgage Corp., 218 Ill. App. 3d 12, 19-20 (1991) (plaintiffs failed to state a cause of action for a violation of the Consumer Fraud Act where they failed to allege: (1) they would have acted differently had they been aware of the disputed charges prior to closing; (2) any misrepresentation by defendant; or (3) any facts indicating that the disputed fees were improper or illegal).
The majority concludes that charging a mortgage assignment recording fee under the circumstances in the certified question did not violate the Consumer Fraud Act because the fee was disclosed in compliance with the Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. § 2601 et seq. (West 1994)). It is true that section 10b(1) of the Consumer Fraud Act exempts from coverage “[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.” 815 ILCS 505/10b(1) (West 1992). However, I believe that RESPA did not authorize the conduct involved herein.
RESPA requires lenders to provide borrowers with a good-faith estimate of the amount of settlement charges a borrower is likely to incur. 12 U.S.C. § 2604(a), (c) (1994). Appendix C of the RESPA regulations contains a suggested good-faith estimate form, which the regulations state is in compliance with RESPA. 24 C.F.R. § 3500.7d (1998). As more completely explained by the majority, this form contains one space for recording fees and has a space below to list “other” fees. 24 C.F.R. pt. 3500, app. C (1998). The regulations permit the lender to include additional information in the good-faith estimate as long as the form remains clear and concise and the additional information is not more prominent than the required material. 24 C.F.R. § 3500.7(d) (1998).
The majority holds that “RESPA authorized defendant to disclose the mortgage assignment recording fee as part of its gross estimate of all recording fees on the good-faith estimate.” 186 Ill. 2d at 485. Accordingly, it was permissible for defendant to “aggregate all recording fees on the single line provided for recording fees in the good-faith estimate form.” 186 Ill. 2d at 484. The fatal flaw in this reasoning is that it implicitly equates the fee for recording the assignment of the mortgage to Midwest with a recording fee associated with the loan transaction. The fact that the assignment to Midwest is a separate transaction that is not part of the loan transaction involving plaintiffs seems to have eluded the majority. While the fee in question is a recording fee, it is incurred by the lender in its separate act of assigning the mortgage, which takes place after or upon completion of a loan made to borrowers such as plaintiffs. Thus, because the fee is not a charge for a cost involved in extending loans,. but rather a charge for a cost involved in assigning those loans, RESPA does not authorize the “aggregation]” of this separate settlement charge with the recording fees legitimately included on the good-faith estimate.
Indeed, while RESPA authorizes lenders to estimate the recording costs incurred in making loans, it does not, as section 10b(1) requires, “specifically authorize” a lender to assess a mortgage assignment recording fee, to fail to disclose it until the closing, or to falsely represent to the borrowers that the fee, for a distinct transaction between the lender and a third party, was a required charge necessary for the lender to close and fund the loan. Therefore, because RESPA does not authorize the conduct described in the certified question, I would find that defendant is unable to use RESPA to invoke the Consumer Fraud Act’s section 10b(1) exemption from liability.
The majority attempts to distinguish Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33 (1994), the case relied upon by plaintiffs to support their claim that defendant cannot rely on the defense provided in section 10b(1). However, I see no qualitative difference in the conduct of the defendant in Martin, which this court found did not warrant section 10b(1) protection, and the conduct of defendant herein. In Martin, while the defendant literally complied with the disclosure regulations of the Commodity Futures Trading Commission in a summary disclosure statement to a plaintiff class of investors, this court held that the defendant’s actions were not specifically authorized by the Commission and the disclosure statement violated the Consumer Fraud Act where it concealed and failed to disclose the defendant’s additional commission through the use of a misleading term. Martin, 163 Ill. 2d at 49-52. Here, while defendant included the mortgage assignment recording fee in the good-faith estimate given to plaintiffs, defendant’s actions were not specifically authorized by RESPA and violated the Consumer Fraud Act where defendant concealed and failed to disclose until the closing of the loan that this fee related to a cost for a separate transaction involving only defendant and a third party.
For the foregoing reasons, I would answer the certified question in the affirmative, holding that defendant’s actions with regard to the mortgage assignment fee constituted a violation of the Consumer Fraud Act. In all other respects I concur.