Midstate Siding and Window Co. v. Rogers

JUSTICE FREEMAN

delivered the opinion of the court:

In this appeal, we are asked to determine whether the Credit Services Organizations Act (Credit Services Act) (815 ILCS 605/1 et seq. (West 1996)) applies to a transaction between a retailer, Midstate Siding and Window Company, Inc. (Midstate), and homeowners Kenneth and Ella Rogers (Rogers). We find that the Credit Services Act does not apply. Consequently, we reverse the judgments of the appellate court and circuit court, and remand for further proceedings.

BACKGROUND

On December 2, 1996, Midstate filed a complaint in the circuit court of Knox County against the Rogers. In the complaint, Midstate alleged that it is in the home remodeling business, and that on July 24, 1996, it entered into a contract with the Rogers to install windows and siding at their home at a cost of $19,600. Midstate further alleged that the Rogers breached the contract by refusing to allow Midstate to perform the work at their home. Midstate sought damages of $4,000 for lost profit, costs and overhead. Midstate also sought to recover its costs of suit and attorney fees. Midstate attached a copy of the contract to its complaint.

In their answer to the complaint, the Rogers admitted that Midstate is in the home remodeling business, and that they signed the contract attached to the complaint. The Rogers also admitted notifying Midstate that they did not want Midstate to perform the work at their home. However, the Rogers maintained that the contract is not enforceable because: (1) it lacks definite and certain terms; (2) it violates the Credit Services Act (815 ILCS 605/1 et seq. (West 1996)), and the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)); (3) the Rogers informed Mid-state of their intent to cancel the contract on July 28, 1996; (4) Midstate failed to obtain credit for the Rogers, a condition precedent to performance of the contract; (5) no payment is due under the terms of the contract; and (6) the Rogers believed they were signing an estimate, not a contract. In addition, the Rogers filed a counterclaim against Midstate. In the counterclaim, the Rogers alleged that Midstate’s salesman, Alan Klunk, indicated that Midstate would obtain financing for the Rogers and/or provide advice or assistance to the Rogers in obtaining an extension of credit. However, in the contract, Midstate failed to describe the services Midstate was to provide in obtaining the extension of credit for the Rogers, in violation of the Credit Services Act and the Consumer Fraud and Deceptive Business Practices Act. The Rogers sought an award of court costs, attorney fees and punitive damages.

Midstate admitted that the Rogers filled out a credit application, and that Midstate forwarded the application to several lending institutions to obtain financing for the Rogers. Bank One, Illinois, N.A., one of the institutions Midstate contacted, agreed to provide a home equity loan to the Rogers. In a letter dated July 30, 1996, Bank One advised the Rogers of its commitment to lend the Rogers the sum of $24,000 at prime plus 3.15%. Midstate maintained that it provided a gratuitous service to the Rogers in forwarding their credit application to the financial institutions.

The matter proceeded to a bench trial at which testimony was heard but not recorded. Following the trial, the circuit court issued a letter opinion as follows:

“I have considered the evidence and your arguments. I find that the Credit Services Organization Act is applicable to the case at bar. I have considered the cases and find that the Act is to be liberally construed to protect consumers. Plaintiff qualifies as a Credit Services Organization i.e., that Plaintiff represented to Defendant that it would assist or obtain for her an extension of credit.
The contract between Plaintiff and Defendant is thereby unenforceable in that it does not comply with [815] ILCS 605/7.
Plaintiff argued that inadequate consideration existed to support a credit contract. This was simply not true. In order to remain competitive, the Plaintiff offered a service to prospective buyers to assist them in obtaining financing to purchase siding and windows. In fact, the agreement between the Plaintiff and Defendant would never have been consummated had the Plaintiff not helped them obtain financing. The Plaintiffs assistance was more than a mere service, but was part of the consideration to support the agreement.”

The circuit court awarded the Rogers attorney fees and costs in the amount of $6,157.50. However, the court found that the Rogers were not entitled to an award of punitive damages. Subsequently, the circuit court denied Midstate’s motion to reconsider and clarified that Mid-state had violated section 7(a)(2) of the Credit Services Act (815 ILCS 605/7(a) (2) (West 1996)).

The appellate court affirmed the judgment of the circuit court, with one justice dissenting. 309 Ill. App. 3d 610. The appellate court reasoned that the Credit Services Act applies to retailers who, in exchange for valuable consideration, aid consumers in obtaining extensions of credit. 309 Ill. App. 3d at 611. The appellate court held that, by providing assistance to the Rogers with regard to obtaining an extension of credit as part of an agreement to side their home, Midstate acted within the purview of the Credit Services Act. In addition the court held that the Rogers were entitled to appellate attorney fees under the Credit Services Act.

We granted Midstate’s petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

A. Record on Review

As noted above, a transcript of the evidence at trial is not available because the trial was not recorded. In the absence of a transcript, it is incumbent upon the appellant to file a bystander’s report of the proceedings (166 Ill. 2d R 323(c)) or an agreed statement of facts (166 Ill. 2d R. 323(d)). Midstate failed to do so, leading the Rogers to argue that we must affirm the judgments of the lower courts because the record on review is incomplete. We disagree.

Midstate, as appellant, has the burden of presenting a sufficiently complete record of the proceedings at trial to support a claim of error (Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984); Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 63 (2001)), and, in the absence of such a record on appeal, the reviewing court will presume that the order entered by the trial court was in conformity with the law and had a sufficient factual basis (Webster v. Hartman, 195 Ill. 2d 426, 433 (2001); Foutch, 99 Ill. 2d at 392). The court will resolve any doubts arising from the incompleteness of the record against the appellant. Foutch, 99 Ill. 2d at 392; In re K.S., 317 Ill. App. 3d 830, 832 (2000). However, in the present case, we are not asked to determine whether the evidence presented at trial was sufficient to support the trial court’s finding. See Buckholtz v. MacNeal Hospital, 313 Ill. App. 3d 521, 526 (2000) (plaintiff maintained that the record fails to establish that an expert witness’ deposition fee was reasonable). Instead, we are asked to interpret a statute, the Credit Services Act, and determine whether the statute regulates the transaction at issue. This is a question of law, and the lack of a complete record does not bar our review. Candice Co. v. Ricketts, 281 Ill. App. 3d 359, 362 (1996); In re Estate of Day, 261 Ill. App. 3d 993, 996 (1994); In re B.H., 218 Ill. App. 3d 583, 586 (1991). Further, because the issue before us is a matter of statutory construction, our review is de novo. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001); Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 148 (1997).

B. Credit Services Act

In determining whether the Credit Services Act applies to the transaction at issue, we are guided by established principles. The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Bridgestone, 179 Ill. 2d at 149, quoting Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978); In re B.C., 176 Ill. 2d 536, 542 (1997). To do so, we examine the language of the statute, the most reliable indicator of the legislature’s objectives in enacting the law. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). We afford the language of the statute its plain and ordinary meaning (Michigan Avenue National Bank, 191 Ill. 2d at 504) and construe the statute as a whole (Sylvester, 197 Ill. 2d at 232). Words and phrases must not be viewed in isolation but must be considered in light of other relevant provisions of the statute. Sylvester, 197 Ill. 2d at 232; Michigan Avenue National Bank, 191 Ill. 2d at 504. We also presume that in enacting the statute the legislature did not intend absurdity, inconvenience, or injustice. Michigan Avenue National Bank, 191 Ill. 2d at 504.

Where the language of the statute is clear and unambiguous, the only legitimate function of the courts is to enforce the law as enacted by the legislature. Henrich v. Libertyville High School, 186 Ill. 2d 381, 391 (1998). It is never proper for the courts to depart from the plain language of the statute by reading into it exceptions, limitations or conditions which conflict with the intent of the legislature. Bridgestone, 179 Ill. 2d at 149, quoting Harvey Firemen’s Ass’n v. City of Harvey, 75 Ill. 2d 358, 363 (1979). There is no rule of statutory construction which authorizes the courts to declare that the legislature did not mean what the plain language of the statute says. Henrich, 186 Ill. 2d at 391; Bridgestone, 179 Ill. 2d at 149.

With these principles in mind, we turn to the arguments advanced by the parties. Citing section 3 of the Credit Services Act (815 ILCS 605/3 (West 1996)), the Rogers maintain that Midstate is a credit services organization because Midstate agreed to help the Rogers obtain financing for the improvements to their home. Midstate counters that it provided a gratuitous service to the Rogers in forwarding their loan application to the financial institutions. Midstate maintains that, in enacting the Credit Services Act, the legislature did not intend to regulate the actions of retailers, such as Midstate, in facilitating the extension of credit to their customers. We agree with Midstate that the legislature did not intend to regulate the transaction at issue.

Section 3 of the Credit Services Act provides in part:

“(a) ‘Buyer’ means an individual who is solicited to purchase or who purchases the services of a credit services organization.
* * *
(d) Credit Services Organization means a person who, with respect to the extension of credit by others and in return for the payment of money or other valuable consideration, provides, or represents that the person can or will provide, any of the following services:
(i) improving a buyer’s credit record, history, or rating!;]
(ii) obtaining an extension of credit for a buyer; or
(iii) providing advice or assistance to a buyer with regard to either subsection (i) or (ii).” 815 ILCS 605/ 3(a), (d) (West 1996).

Looking to the definition of a “[b]uyer” and the definition of a “[c]redit [sjervices [organization,” it is clear that the Credit Services Act regulates transactions involving the payment of money or other valuable consideration in return for the services of the credit services organization. In turn, the services of the credit services organization are “improving a buyer’s credit record, history, or rating”; “obtaining an extension of credit for a buyer”; or “providing advice or assistance to a buyer” with regard to “improving a buyer’s credit record, history, or rating” or with regard to “obtaining an extension of credit” for the buyer. 815 ILCS 605/3 (West 1996). Thus, the Credit Services Act requires payment for credit services, not simply payment for other goods or services.

In the present case, the circuit court rejected Mid-state’s contention that there was inadequate consideration to support a contract for credit services. The circuit court observed:

“In order to remain competitive, the Plaintiff offered a service to prospective buyers to assist them in obtaining financing to purchase siding and windows. In fact, the agreement between the Plaintiff and Defendant would never have been consummated had the Plaintiff not helped them obtain financing. The Plaintiffs assistance was more than a mere service, but was part of the consideration to support the agreement.”

In this, the circuit court committed error. The Credit Services Act requires that the credit services organization, in return for the payment of money or other valuable consideration, agree to provide, or represent that it will provide, credit services to the buyer. The services must be related to an extension of credit for the buyer or improvement of the buyer’s credit record, history or rating. The contract at issue does not provide for payment of money or other valuable consideration in return for credit services provided by Midstate. Instead, the agreed consideration is for payment of windows and siding to be installed at the Rogers’ home. Although we agree with the circuit court that the Rogers would not have proceeded with the installation of the windows and siding without assistance in obtaining an extension of credit, the Credit Services Act requires additional consideration for such assistance.

Our reading of the statutory language is consistent with section 5 of the Act. That section provides:

“No credit services organization *** shall:
***
(2) Charge or receive any money or other valuable consideration solely for the referral of a buyer to a retail seller who will or may extend credit to the buyer if such extension of credit is in substantially the same terms as those available to the general public.” (Emphases added.) 815 ILCS 605/5 (West 1996).

The section prohibits a credit services organization from charging a fee for referrals to a retail seller. The section also recognizes that a retail seller is an entity that may extend credit to a buyer. The major distinction between a credit services organization and a retail seller is that the credit services organization, in return for the payment of money or other valuable consideration, offers services to a buyer dedicated to improving the buyer’s credit history or rating or to obtaining an extension of credit for the buyer.

Our interpretation of the statutory language is also consistent with the legislative findings and declarations set forth in the Act. Section 2 of the Credit Services Act (815 ILCS 605/2 (West 1996)) provides in part:

“(a) The ability to obtain and use credit has become of great importance to consumers who have a vital interest in establishing and maintaining their credit worthiness and credit standing. As a result, consumers who have experienced credit problems may seek assistance from credit service businesses which offer to improve the credit standing of such consumers. Certain advertising and business practices of some companies engaged in the business of credit services have worked a financial hardship upon the people of this State, often on those who are of limited economic means and inexperienced in credit matters.
(b) The purpose of this Act is to provide prospective consumers of credit services companies with the information necessary to make an informed decision regarding the purchase of those services and to protect the public from unfair or deceptive advertising and business practices.”

The Credit Services Act is aimed at remedying problems encountered by consumers seeking to improve their credit history or rating, obtain more favorable terms on current debt, or obtain an extension of credit through services provided by credit services organizations. As such, the Credit Services Act prohibits credit services organizations from engaging in certain conduct (815 ILCS 605/5 (West 1996)) and requires that credit services organization make certain disclosures to the buyers (815 ILCS 605/6, 7 (West 1996)). The Credit Services Act is not intended to regulate retailers primarily engaged in the business of selling goods and services to their customers. The goods and services provided by retailers are not generally services aimed at improving the consumer’s credit or obtaining an extension of credit for the consumer, otherwise unattainable because of the consumer’s poor credit history or rating. See Fogle v. William ChevroletIGeo, Inc., No. 99 — C—5960 (N.D. Ill. August 9, 2000) (mem. op.).

CONCLUSION

For the aforementioned reasons, the judgments of the appellate court and circuit court are reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Appellate court judgment reversed; circuit court judgment reversed;

cause remanded.

JUSTICE RARICK took no part in the consideration or decision of this case.