Lead Opinion
delivered the opinion of the court:
The issues presented in this appeal center on whether a lender violated the Illinois Consumer Fraud and Deceptive Business Practices Act (hereinafter Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1992)) by charging loan applicants a mortgage assignment recording fee and a tax escrow suspension fee.
BACKGROUND
In October of 1992, plaintiffs, Phyllis J. Weatherman, Ruth A. Russell, and Ronald D. Vega, applied to defendant, Gary-Wheaton Bank of Fox Valley, for a mortgage to refinance residential property.
Before closing, defendant chose to assign plaintiffs’ mortgage to Midwest Mortgage Services, Inc. (Midwest), a wholesale mortgage banking company that buys and then sells mortgage loans into the secondary mortgage market. Defendant and Midwest have had a contract with each other since 1987 regarding the sale and purchase of mortgage loans. Also prior to closing, plaintiffs requested that defendant suspend the tax escrow. Defendant agreed and informed plaintiffs they would be charged a $343.13 fee to “control their own escrow.”
At closing, defendant provided plaintiffs with a “Settlement Statement” containing an itemized breakdown of all closing costs. That statement indicated that plaintiffs would be charged $77 in recording fees, which included a $15 fee to record the assignment of the mortgage to Midwest. Defendant paid that fee to the title company, which was paying for the recording. The “Settlement Statement” further indicated that plaintiffs would be charged a $343.13 escrow suspension fee. Plaintiffs paid these fees at closing, but claim that they did so only to complete the refinancing, control their own escrow by paying their property taxes themselves, and avoid losing their lock-in fee.
Plaintiffs thereafter filed a class action complaint in the circuit court of Cook County against defendant, the First National Bank of Chicago, and First Chicago Corporation. Acting on behalf of a putative class comprised of all mortgage borrowers to whom defendant charged either a mortgage assignment recording fee or an escrow suspension fee within the applicable limitations period, plaintiffs allege that defendant failed to inform them of the mortgage assignment recording fee until closing and failed to inform them of the escrow suspension fee until just a few days before closing. Plaintiffs claim that they received no benefit as a result of either the mortgage assignment recording fee or the escrow suspension fee and that, had they known before paying their lock-in fee that defendant would charge them these two fees, they “would have pursued refinancing with other lenders who did not require payment of these fees.” In addition, plaintiffs claim that defendant misrepresented that the fees were required and necessary charges to close and fund the loan. Plaintiffs further allege that they relied on defendant’s omissions and misrepresentations. Based on these allegations, plaintiffs claim that defendant violated the Consumer Fraud Act by engaging in unfair, unauthorized and deceptive lending practices.
Defendant moved to dismiss plaintiffs’ complaint, asserting that First Chicago Corporation, as the parent company of the First
Defendant next filed a motion to dismiss the mortgage assignment recording fee claim under section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 1992)), which the court denied. The court also refused plaintiffs’ request to decide the issue of class certification at that time. On defendant’s request, however, the circuit court certified the following question of law for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):
“A. Whether a lender violates the Illinois Consumer Fraud and Deceptive [Business] Practices Act by giving an applicant for a loan, at the time a loan is applied for, a gross estimate of .the recording fees to be paid at closing and not telling the loan applicant until closing that one of the fees included in the gross estimate was a fee to cover the cost of recording the assignment of the mortgage securing the loan.
B. In this case, the assignee of the assignment is a wholly-owned affiliate of the defendant.”
The circuit court also found that, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), there was no just reason to delay the appeal of its decision dismissing the escrow suspension fee claim, and stayed further proceedings pending appellate review.
The appellate court accepted defendant’s petition for leave to appeal on the Rule 308 certified question, and consolidated that appeal with plaintiffs’ Rule 304(a) appeal from the circuit court’s dismissal of the escrow suspension fee claim. The appellate court majority answered the certified question affirmatively on the basis that such conduct amounted to a deceptive and unfair practice.
Both parties filed petitions for leave to appeal to this court. We denied defendant’s petition for leave to appeal and entered a supervisory order remanding the cause to the appellate court for reconsideration of its denial of defendant’s petition for rehearing regarding the mortgage assignment recording fee. Plaintiffs’ petition for leave to appeal, asserting that the circuit and appellate courts erred in dismissing the escrow suspension fee claim, was denied by this court without prejudice, so as to allow plaintiffs the opportunity to refile. On remand, the appellate court denied defendant’s petition for rehearing, and defendant filed a new petition for leave to appeal to this court on the mortgage assignment recording fee issue. This
ANALYSIS
I. Mortgage Assignment Recording Fee
We first review the question of law certified by the circuit court pursuant to Rule 308. As noted, the circuit court certified the question of law concerning the mortgage assignment recording fee following its denial of defendant’s section 2 — 619 motion to dismiss plaintiffs’ mortgage assignment recording fee claim. The standard of review on appeal is therefore de novo. See In re Chicago Flood Litigation,
The Consumer Fraud Act is “a regulatory and remedial statute intended to protect consumers, borrowers and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Cripe v. Leiter,
The federal statute relied on by defendant is the Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. § 2601 et seq. (1994)). RESPA sets forth various requirements regarding the residential real estate settlement process. One of Congress’ stated purposes for enacting RESPA was to provide more effective advance disclosure to home buyers and sellers of settlement costs, i.e., the costs associated with residential real estate closings. 12 U.S.C. § 2601(b)(1) (1994). RESPA effectuates this purpose by requiring disclosure of settlement costs both before and at closing. More specifically, RESPA requires that, when a mortgage lender prepares a written loan application, it must also distribute to the borrower a booklet, prepared by the Secretary of Housing and Urban Development (HUD), designed to help the borrower better understand the nature and costs of real estate settlement services. 12 U.S.C. §§ 2604(a), (d) (1994). RESPA also requires that, at the time of application, the lender must provide the borrower with a good-faith estimate of settlement charges. 12 U.S.C. § 2604(c) (1994). Further, RESPA states that, at closing, the borrower must be provided with a uniform settlement statement. A uniform settlement statement is a standard form developed by HUD that itemizes all of a borrower’s charges for settlement. 12 U.S.C. § 2603(a), (b) (1994).
In this case, the documents attached to plaintiffs’ complaint establish that, when plaintiffs applied for their mortgage loan, defendant provided them with a good-faith estimate of their settlement charges. That good-faith estimate included a line marked “recording fees,” which were listed at $80. Subsequently, at closing, plaintiffs were provided with a settlement statement that itemized all of their settlement charges, including a breakdown of their individual recording fees. That statement indicated that actual recording fees would be $77, which included a $15 mortgage assignment recording fee. Plaintiffs’ complaint alleges that, in charging the $15 mortgage assignment recording fee, defendant committed a deceptive and unfair practice under the Consumer Fraud Act. Plaintiffs contend that defendant did not comply with RESPA’s requirements regarding the good-faith estimate and that defendant is therefore not exempt from liability under section 10b(l) of the Consumer Fraud Act.
Plaintiffs assert that defendant did not comply with RESPA because it failed to specifically identify the mortgage assignment recording fee in the good-faith estimate, such
Regulation X (24 C.F.R. § 3500.1 et seq. (1998)), the regulation prescribed by HUD to interpret and implement RESPA, provides further support for the conclusion that a lender is not required to itemize all charges relating to settlement in the good-faith estimate. RESPA authorizes HUD to prescribe regulations to achieve its purpose. 12 U.S.C. § 2617(a) (1994). We accord considerable deference to a federal agency’s interpretation of a federal statute, provided that its interpretation is reasonable and Congress has not expressed a contrary intent. Spitz v. Goldome Realty Credit Corp.,
Regulation X explains in detail the requirements of a good-faith estimate. It defines a good-faith estimate as an estimate of charges that a borrower is likely to incur in connection with a settlement. 24 C.F.R. § 3500.2 (1998). Regulation X does not require all recording fees to be itemized in the good-faith estimate. Section 3500.7(d) of Regulation X provides a suggested good-faith estimate form and a suggested HUD-1 settlement statement. 24 C.F.R. pt. 3500, app. A, app. C (1998). The sample form lists specific categories of fees, each with a fine where the lender inserts the fee amount. 24 C.F.R. pt. 3500, app. C (1998). Each category of fee corresponds to the line number of that fee on the HUD-1 settlement statement.
Instead of requiring the lender to itemize each fee, the good-faith estimate form allows settlement fees to be disclosed as gross estimates. The good-faith estimate form lists a category for recording fees, which corresponds to line 1201 of the HUD-1 settlement statement. 24 C.F.R. pt. 3500, app. C (1998). The form contains only one line for a lender to estimate all “recording fees” referred to on line 1201 of the HUD-1 settlement statement. 24 C.F.R. pt. 3500, app. C (1998). In contrast, line 1201 of the sample HUD-1 settlement statement provides for the itemization of recording fees as indicated by its breakdown of fees for the recording of a deed, a mortgage, and a release. 24 C.F.R. pt. 3500, app. A (1998). Lines 1204 and 1205 of the HUD-1 settlement statement provide additional lines and spaces where other recording fees may be added. 24 C.F.R. pt. 3500, app. A (1998). Thus, unlike the good-faith estimate form, the HUD-1 settlement statement provides several lines and spaces for a lender to identify the amounts of specific recording fees. Moreover, the instructions to the HUD-1 settlement statement provide that recording fees
In light of the limited format set forth in the good-faith estimate form and the detailed format set forth in the HUD-1 settlement statement for identifying recording fees, we determine that a lender is not required to itemize all recording fees in the good-faith estimate. Rather, the lender is permitted to aggregate all recording fees on the single line provided for recording fees in the good-faith estimate form. We therefore conclude that RESPA authorizes a lender to reflect all recording fees as a gross estimate in the good-faith estimate. A gross estimate of recording fees satisfies the purpose of RESPA because it provides effective advance disclosure to a borrower and gives a borrower an opportunity to compare the recording fees of one lender with those of another lender.
In this case, defendant, as a lender acting under the circumstances stated in the certified question, complied with the good-faith estimate disclosure requirements of RESPA. 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. Defendant did just that. In the good-faith estimate form given to plaintiffs, defendant set forth $80 on the single line for the estimated amount or range for all recording fees. That $80 estimate included within it the $15 mortgage assignment recording fee at issue. Contrary to plaintiffs’ argument, defendant was not required to itemize the recording fees in the good-faith estimate, as defendant later did in the HUD-1 settlement statement given to plaintiffs at closing. We also reject the appellate court’s suggestion that RESPA required a separate listing of the mortgage assignment recording fee because the sample form includes an additional category entitled “Other fees.” See 24 C.F.R. pt. 3500, app. C (1998). We interpret “other fees” as fees other than those specifically categorized on the good-faith estimate form. Because there is a category for recording fees, “other fees” does not refer to specific recording fees. Defendant reasonably included the $15 mortgage assignment recording fee within the gross estimate of recording fees and not within the category for “other fees.” Therefore, because defendant informed plaintiffs of a gross estimate of recording fees, which included the mortgage assignment recording fee, and that plaintiffs’ loan would be sold, we find that plaintiffs agreed to the mortgage assignment recording fee.
Plaintiffs nevertheless contend that the $15 fee defendant charged for recording the assignment of plaintiffs’ mortgage to Midwest was not an authorized charge under RESPA. According to plaintiffs, this assignment was a separate transaction, unrelated to plaintiffs’ loan from defendant. We reject plaintiffs’ argument.
The plain meaning of the language used by the legislature is the best indication of legislative intent, to which this court will give effect in construing a statute. Nottage v. Jeka,
Before concluding, we note that our findings are not affected by the fact that defendant and Midwest are affiliates. Although defendant intended, in advance of closing, to assign plaintiffs’ mortgage to Midwest, there
Having determined that defendant’s actions, as set forth in the certified question, complied with the disclosure requirements of RESPA, we examine whether such compliance constitutes a defense to liability under the Consumer Fraud Act. As earlier noted, section 10b(1) of the Consumer Fraud Act provides that the Act 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.” 815 ILCS 505/10b(1) (West 1992). Defendant contends that, because it acted in accordance with RESPA, it is exempt from liability under section 10b(1) of the Consumer Fraud Act. Plaintiffs counter that defendant’s compliance with RESPA did not exempt defendant from liability under the Consumer Fraud Act. Plaintiffs rely on this court’s decision in Martin v. Heinold Commodities, Inc.,
Plaintiffs’ reliance on Martin is misplaced. In Martin, the plaintiffs alleged that the defendant violated the Consumer Fraud Act because the defendant misrepresented the nature of a “foreign service fee” on the disclosure statement given to the plaintiffs in conjunction with the sale of commodity option contracts. The defendant responded that the Consumer Fraud Act did not apply because, by complying with the Commodity Futures Trading Commission’s disclosure regulations, section 10b(1) of the Consumer Fraud Act provided a defense to liability. This court rejected the application of section 10b(1) because it determined that the defendant’s mischaracterization of the terms in the disclosure statement was not specifically authorized by the Commission and was not in compliance with the Commission’s regulations. Martin,
We conclude that defendant’s compliance with RESPA in this case renders defendant exempt from liability under the Consumer Fraud Act. Actions specifically authorized by RESPA satisfy section 10b(1) of the Consumer Fraud Act because they are “[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)). We note that this same conclusion has been reached with regard to compliance with the Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq. (1994)). The purpose of TILA is to promote the informed use of credit by providing consumers with meaningful disclosure of credit terms. 15 U.S.C. § 1601(a) (1994). For example, TILA requires that creditors must clearly and accurately reveal to consumers the cost of credit, including all finance charges. 15 U.S.C. §§ 1605, 1632, 1637, 1637a, 1638 (1994). TILA’s purpose is thus similar to RESPA’s purpose of providing a borrower with more effective advance disclosure of settlement costs. In cases where the defendant complied with TILA, courts have applied section 10b(1) of the Consumer Fraud Act to find that there was no violation of the Act. See Lanier v. Associates Finance, Inc.,
In light of the foregoing, we hold that defendant, as a lender that disclosed the mortgage assignment recording fee under the circumstances stated in the certified question, complied with RESPA. By complying with RESPA, a lender is exempt from liability under section 10b(1) of the Consumer Fraud Act. Defendant’s acts, as set forth in the certified question, therefore did not violate the Consumer Fraud Act. Accordingly, we answer the certified question in the negative.
II. Plaintiffs’ Cross-Relief: Escrow Suspension Fee
We next address plaintiffs’ request for cross-relief. Plaintiffs argue that defendant violated the Consumer Fraud Act by charging them a fee to suspend the tax escrow, which fee was not disclosed until a few days before closing. Defendant first responds that this court lacks jurisdiction to consider plaintiffs’ arguments regarding the escrow suspension fee claim. Defendant bases this jurisdictional argument on the fact that plaintiffs did not appeal from the appellate court’s judgment affirming the circuit court’s dismissal of the escrow suspension fee claim. As earlier noted, both parties initially filed petitions for leave to appeal to this court. Plaintiffs filed a petition for leave to appeal from the appellate court’s judgment regarding the escrow suspension fee claim. Defendant’s petition for leave to appeal concerned the appellate court’s judgment regarding the mortgage assignment recording fee. This court denied defendant’s petition for leave to appeal and entered a supervisory order remanding the cause to the appellate court for reconsideration of its denial of defendant’s petition for rehearing. This court also denied plaintiffs’ petition for leave to appeal without prejudice. On remand, the appellate court again denied defendant’s petition for rehearing, and defendant filed a new petition for leave to appeal from the decision of the appellate court as to the mortgage assignment recording fee. Plaintiffs, however, did not file another petition for leave to appeal from the appellate court’s decision as to the escrow suspension fee. It is solely this failure to file a second petition for leave to appeal that is at issue. Plaintiffs respond that, under Supreme Court Rule 318(a) (155 Ill. 2d R. 318(a)), this court may properly review plaintiffs’ escrow suspension fee claim. We agree with plaintiffs.
Rule 318, which provides the general rules governing civil appeals from the appellate court to this court, states in subsection (a) that in all appeals “any appellee, respondent, or coparty may seek and obtain any relief warranted by the record on appeal without having filed a separate petition for leave to appeal or notice of cross-appeal or separate appeal.” 155 Ill. 2d R. 318(a). This court has invoked Rule 318(a) in finding that allowance of one party’s petition for leave to appeal brings before this court the other party’s requests for cross-relief. See Zimmerman v. Village of Skokie,
Plaintiffs argue that the circuit and appellate courts erred in finding that they failed to state a cause of action under the Consumer Fraud Act with regard to defendant’s charging a fee to suspend plaintiffs’ escrow. As noted, the circuit court granted defendant’s motion to dismiss the escrow suspension fee claim pursuant to section 2 — 615. Such a motion attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint. Bryson v. News America Publications, Inc.,
To state a cause of action under the Consumer Fraud Act, a plaintiff must allege: (1) a deceptive act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deception; and (3) that the deception occurred in the course of conduct involving trade and commerce. Connick,
Plaintiffs’ complaint alleges that defendant violated the Consumer Fraud Act by charging plaintiffs an escrow suspension fee because: (1) defendant failed to inform plaintiffs until three or four days before the closing that it would charge plaintiffs a fee to manage their own escrow; and (2) the fee was unfair and unauthorized in that defendant misrepresented that the fee was a required charge and necessary to close and fund the loan, when, in fact, the Mortgage Escrow Account Act (Escrow Act) (765 ILCS 910/1 et seq. (West 1992)) does not permit a lender to charge a fee to suspend its escrow requirement. For the reasons that follow, we hold that plaintiffs’ allegations are insufficient to state a cause of action under the Consumer Fraud Act.
We first address plaintiffs’ allegation that defendant failed to inform plaintiffs about the escrow suspension fee until a few days before closing. The good-faith estimate form plaintiffs received from defendant at the time they applied for their loan is attached to plaintiffs’ complaint. This form indicates that defendant informed plaintiffs of the amount of the tax escrow. Plaintiffs signed and returned the good-faith estimate form to defendant. In response to defendant’s request to admit pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216), plaintiffs admitted that they asked defendant to suspend its escrow requirement after the loan had been approved and plaintiffs had paid the lock-in fee. This court has determined that admissions made pursuant to a request under our Rule 216 are tantamount to judicial admissions. Mt. Zion State Bank,
Plaintiffs also allege that imposing the escrow suspension fee violated the Consumer Fraud Act because defendant falsely told them the fee was required and necessary to close and fund the loan when, in fact, such a fee was not authorized under the Escrow Act. Plaintiffs’ complaint states: “If the bank believes itself insecure for the buyer’s payment of taxes and insurance, it may require an escrow or secured account pledge. The law does not permit [defendant] to make a charge for ‘deferring’ this choice.” We disagree.
The Escrow Act addresses the options available to a lender and a borrower to secure the payment of real estate taxes on mortgaged property. Section 6 of the Escrow Act provides: “In lieu of the mortgage lender establishing an escrow account or an escrow-like arrangement, a borrower may pledge an interest-bearing time deposit with the mortgage lender in an amount sufficient to secure the payment of anticipated taxes.” 765 ILCS 910/6 (West 1992). This provision clearly governs a borrower’s option to pledge an interest-bearing time deposit instead of an escrow account to cover the payment of future anticipated property taxes. Nevertheless, the Escrow Act does not address the situation presented here, wherein a lender waives the escrow requirement at the request of the borrower, who does not in turn request to pledge an interest-bearing time deposit as security for the future payment of property taxes. Moreover, there is nothing in the Escrow Act which would preclude a lender from charging a fee for assuming an additional risk, namely, that a borrower would not pay his or her property taxes. Consequently, plaintiffs’ allegation that the Escrow Act prohibits a lender from charging a fee for waiving its right to require an escrow, when a borrower does not exercise his or her option to pledge an interest-bearing time deposit, is without merit.
Our holding in Stern v. Norwest Mortgage, Inc.,
The fee in Stern related to an option covered by the Escrow Act. The escrow suspension
Accordingly, we hold that the allegations in plaintiffs’ complaint regarding defendant’s charging an escrow suspension fee are insufficient to state a cause of action against defendant for violating the Consumer Fraud Act. The circuit court thus properly dismissed this claim.
CONCLUSION
For the foregoing reasons, we reverse the appellate court’s holding that answered the certified question in the affirmative, but we affirm the appellate court’s holding that affirmed the circuit court’s dismissal of plaintiffs’ escrow suspension fee claim. We remand this cause to the circuit court for further proceedings consistent with this opinion.
Appellate court judgment affirmed in part and reversed in part; cause remanded.
JUSTICE RATHJE took no part in the consideration or decision of this case.
Notes
After plaintiffs applied for their loan, the First National Bank of Chicago, which is a subsidiary of First Chicago Corporation, acquired Gary-Wheaton Bank of Fox Valley.
Although the motion failed to specify under which section of the Code of Civil Procedure dismissal was sought, the substance of the motion challenged whether plaintiffs’ complaint regarding the mortgage assignment recording fee and the escrow suspension fee stated a cause of action. We, therefore, agree with the appellate court that it should be reviewed as a section 2 — 615 motion (735 ILCS 5/2 — 615 (West 1992)).
Concurrence Opinion
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.,
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,
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.,
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.”
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.,
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.