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FIFTH DIVISION
DECEMBER 31, 2003

Nos. 1-02-2738, 1-02-2747, 1-02-2749, 1-02-2751, 1-02-2753,
         1-02-2754, 1-02-2757, 1-02-2758, 1-02-2759, 1-02-2760,
         1-02-2761, 1-02-2762, 1-02-2763, 1-02-2764, 1-02-2765,
         1-02-2766, 1-02-2796, 1-02-2799, 1-02-2800, 1-02-2801,
         1-02-2802, 1-02-2803, 1-02-2804, 1-02-2805, 1-02-2921,
         1-02-2922, 1-02-2967, 1-02-2968, 1-02-2971, 1-02-2980,
         1-02-2982, 1-02-2984, 1-02-2986, 1-02-3063, 1-02-3273,
         1-02-3274, 1-02-3292 (Consolidated)

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

In these 37 consolidated appeals, plaintiffs appeal from orders of the circuit court of CookCounty dismissing their complaints against the defendant financial institutions, from whichplaintiffs had obtained mortgages. The complaints alleged that the defendants engaged in theunauthorized practice of law by filling out notes, mortgages and related documents, and chargingplaintiffs a document preparation fee for doing so. These complaints also contained claims formoney had and received, seeking restitution for the document preparation fees, and claims thatdefendants' failure to disclose that their acts constituted the practice of law but were notperformed by lawyers violated the Consumer Fraud and Deceptive Business Practices Act(Consumer Fraud Act) (815 ILCS 505/2 (West 1998)). The complaints also contain classallegations, but there are no class action issues in these appeals.

On March 8, 2002, the presiding judge of the chancery division of the Cook Countycircuit court ordered that these claims be heard before one judge. The defendants filed motions todismiss each of the complaints as failing to state a claim for which relief may be granted, pursuantto section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 2000)). Defendants argued that: (1) the plaintiffs did not have a private right of action to sue for damagesfor the unauthorized practice of law; (2) defendants had not engaged in the unauthorized practiceof law; (3) plaintiffs' claims are barred by the "voluntary payment" doctrine; (4) the ConsumerFraud Act does not allow claims for the unauthorized practice of law; and (5) plaintiffs cannotallege the elements of a Consumer Fraud Act claim in these cases. In addition, several defendantsthat are federal savings associations and a national bank moved to dismiss the claims against thempursuant to section 2--619 of the Code, arguing that the claims were preempted by the federal lawgoverning these types of institutions. 735 ILCS 5/2--619 (West 2000).

On August 27, 2002, the trial court entered three orders. The first order granteddefendants' section 2--615 motions. The second order granted the federal savings associations'section 2--619 motions. The third order granted the national bank's section 2--619 motion. Plaintiffs timely filed notices of appeal to this court.

This court consolidated the appeals and entered an agreed order providing for the filing ofconsolidated briefs. This court notes that the manner in which these cases were lumped togetherwas less than ideal. In addition to the preemption claims raised by the federal savings associationdefendants and the national bank defendant, we note that fewer than all of the plaintiffs madeclaims for both restitution and violations of the Consumer Fraud Act. Moreover, some of theunauthorized practice of law claims involved third-party document preparation companies,whereas most did not. Of those claims involving alleged third-party document preparationcompanies, one apparently was involved in the transaction, whereas other complaints containedno such allegation. In one instance, the alleged third-party document preparation company wasalleged to be an affiliate of the lender. In two other instances, the alleged third-party documentpreparation company was not named in the notices of appeal.

In short, these appeals demonstrate the practical problems and potential pitfalls in casemanagement that arise from the filing of a multiplicity of roughly similar putative class actions inthe circuit court. The appeals here are ultimately sufficiently similar that this court will notreverse their consolidation. However, we admonish the parties and the bar in general that in thefuture, this court may not look favorably upon such consolidation, and may not look favorablyupon claims that a trial court erred in considering a fine point in one of several dozen cases that the parties have actively encouraged our courts to consider together.

Initially, this court addresses the standards of review. Plaintiffs appeal dismissals enteredpursuant to sections 2--615 and 2--619 of the Code. A section 2--615 motion admits allwell-pleaded facts and attacks the legal sufficiency of the complaint; a section 2--619 motionadmits the legal sufficiency of the complaint, but raises defects, defenses or other affirmativematter appearing on the face of the complaint or established by external submissions which defeatthe action. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733, 736(1999). Generally, dismissals under either section are reviewed de novo. R-Five, Inc. v. Shadeco,Inc., 305 Ill. App. 3d 635, 639, 712 N.E.2d 913, 915 (1999).

We note, as did the trial court, that defendants other than the federal savings associationsand the national bank raised affirmative matters in their section 2--615 motions to dismiss. Section 2--619.1 of the Code allows a litigant to combine a section 2--615 motion to dismiss anda section 2--619 motion for involuntary dismissal in one pleading. 735 ILCS 5/2--619.1 (West2000). However, this statute does not authorize hybrid motion practice. Storm & Associates,Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1046, 700 N.E.2d 202, 206 (1998). The failure tospecifically designate whether a motion to dismiss is brought pursuant to section 2--615 or section2--619 is not always fatal, but reversal is required if prejudice results to the nonmovant. IllinoisGraphics Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282, 1289 (1994).

Typically, affirmative matter is to be supported by affidavit in a section 2--619 motion. 735 ILCS 5/2--619(a)(9) (West 2000). In practice, however, where affirmative matter has beenconsidered to be apparent on the face of the pleading, a motion to dismiss is peculiarly within thearea of confluence between section 2--615 and section 2--619(a)(9). Nickum, 159 Ill. 2d at 486,639 N.E.2d at 1290. In these cases, the affirmative matter raised by the defendants may bedetermined from the pleadings. Moreover, the parties fully briefed and argued these issues in thetrial court and in this court without the plaintiffs objecting that the issues should have been raisedunder section 2--619. Accordingly, plaintiffs have not and will not suffer unfair prejudice fromconsideration of the affirmative matter raised by the defendants. Moreover, this court may affirma correct dismissal for any reason appearing in the record. Nielsen-Massey Vanillas, Inc. v. Cityof Waukegan, 276 Ill. App. 3d 146, 151, 657 N.E.2d 1201, 1205 (1995).

This court will now proceed to defendants' argument that plaintiffs' claims are barred bythe "voluntary payment" doctrine, as we find it dispositive of all of the consolidated appeals. Under the voluntary payment doctrine, money voluntarily paid under a claim of right to thepayment, and with knowledge of the facts by the person making the payment, cannot be recoveredby the payor solely because the claim was illegal. Kanter & Eisenberg v. Madison Associates, 116Ill. 2d 506, 512, 508 N.E.2d 1053, 1055 (1987); Illinois Glass Co. v. Chicago Telephone Co., 234Ill. 535, 541, 85 N.E. 200, 201 (1908).⁽¹⁾ Absent fraud, misrepresentation, or mistake of fact,money voluntarily paid under a claim of right to the payment, with full knowledge of the facts bythe person making the payment, cannot be recovered unless the payment was made undercircumstances amounting to compulsion. Nickum, 159 Ill. 2d at 497, 639 N.E.2d at 1295; Commercial National Bank of Peoria v. Bruno, 75 Ill. 2d 343, 350-51, 389 N.E.2d 163, 167(1979); Groves v. Farmers State Bank of Woodlawn, 368 Ill. 35, 47, 12 N.E.2d 618, 624 (1937)(and authorities cited therein). Thus, to negate the applicability of the voluntary paymentdoctrine, one must not only show that the claim asserted was unlawful but also that payment wasnot voluntary, that there was some necessity which amounted to compulsion, though the doctrineof duress of person (and later of goods) has been relaxed and extended so as to include compulsion of business and circumstances. Illinois Glass Co., 234 Ill. at 541, 85 N.E. at 201; Smith v.Prime Cable of Chicago, 276 Ill. App. 3d 843, 847-848, 658 N.E.2d 1325, 1329-30 (1995).

Plaintiffs, relying on Kaiser v. Fleming, 315 Ill. App. 3d 921, 925, 735 N.E.2d 144, 147(2000), argue that their claims do not require that they show compulsion. However, as shownabove, our supreme court has repeatedly held that a party must plead or prove compulsion todefeat the defense of the voluntary payment doctrine.

Plaintiffs contend that the voluntary payment doctrine cannot be used to defeat publicpolicy. Plaintiffs cite Dunbar v. American Telephone & Telegraph Co., 238 Ill. 456, 87 N.E. 521(1909), but the supreme court clearly stated therein that the acts involved worked a fraud on theplaintiffs. Dunbar, 238 Ill. at 480, 87 N.E. at 533. Plaintiffs also cite Evans v. Funk, 151 Ill. 650,38 N.E. 230 (1894), which allowed the recovery of payments made to a probate judge who alsoacted as an attorney in settling a probate case before his court, based on both the judge's powerover others and the use of "fraudulent practices and artifices." The Funk court held that to donothing "'would contravene the settled law that the courts will protect the citizen against all suchacts of oppression and deceit.'" Funk, 151 Ill. at 661, 38 N.E. at 234, quoting Baehr v. Wolf, 59Ill. 470, 474 (1871). These cases are consistent with the rules requiring fraud or compulsion todefeat the doctrine. Accepting plaintiffs' argument would abrogate the voluntary paymentdoctrine recognized by our supreme court, which specifically applies to claims of illegality.

Plaintiffs cite Ransburg v. Haase, 224 Ill. App. 3d 681, 688, 586 N.E.2d 1295, 1300(1992), which recognized a cause of action to recover fees paid to an unlicensed architect, basedon the illegality of the contract. However, in Ransburg, the defendant did not raise, and this courtdid not consider, the defense of voluntary payment. Moreover, Ransburg relies in part on theplaintiffs' allegation that the defendant held himself out as a licensed architect. Ransburg, 224 Ill.App. 3d at 687, 586 N.E.2d at 1299. Plaintiffs here made no allegation that defendants heldthemselves out as attorneys. Indeed, the exhibits attached to the pleadings would tend tocontradict any such allegation, as the document preparation fees and the entities to be paid areitemized separately from attorney fees in the HUD-1 settlement statements.

Plaintiffs cite a number of cases to support the argument that disgorgement of an unlawfulfee is an appropriate remedy. Lozoff v. Shore Heights, Ltd., 66 Ill. 2d 398, 403, 362 N.E.2d1047, 1049 (1977), held that a Wisconsin lawyer who was not licensed in Illinois could notpetition the court for fees. Similarly, Douthart v. Congdon, 197 Ill. 349, 64 N.E. 348 (1902),held that an unlicensed grain broker could not recover on a contract. Kaplan v. Tabb Associates,Inc., 276 Ill. App. 3d 320, 657 N.E.2d 1065 (1995), involved an unlicensed architect's attempt toenforce an arbitration clause in the parties' agreement. Greiner v. Dominick's Finer Foods, Inc.,273 Ill. App. 3d 1037, 652 N.E.2d 1162 (1995), involved an unlicensed broker's attempt torecover a real estate commission. See also Rabin v. Prenzler, 116 Ill. App. 3d 523, 451 N.E.2d1331 (1983) (same); White v. Chicago Title & Trust Co., 99 Ill. App. 3d 323, 425 N.E.2d 1017(1981) (same); Central National Bank in Chicago v. Alexander Marketing, Inc., 47 Ill. App. 3d58, 361 N.E.2d 766 (1977) (same). T.E.C. & Associates, Inc. v. Alberto-Culver Co., 131 Ill.App. 3d 1085, 1088, 476 N.E.2d 1212 (1985), involved an unlicensed employment agency'sattempt to recover fees. Tovar v. Paxton Community Memorial Hospital, 29 Ill. App. 3d 218,330 N.E.2d 247 (1975), involved a unlicensed physician's attempt to recover fees. In each ofthese cases, the fees had not been paid, let alone voluntarily paid; thus, there was no question ofdisgorging the fees.

Plaintiffs argue that the voluntary payment doctrine does not apply to their cases becausethey have alleged fraud. However, plaintiffs did not allege fraud. Rather, plaintiffs allege thatdefendants violated the Consumer Fraud Act, a statute that eliminates many of the elements of aclaim of common law fraud. Miller v. William Chevrolet/GEO, Inc., 326 Ill. App. 3d 642, 654,762 N.E.2d 1, 11 (2001). Indeed, in these cases, plaintiffs' consolidated brief does not argue thatdefendants engaged in deception or fraud, but that defendants engaged in an "unfair practice," i.e.,violating public policy by engaging in the unauthorized practice of law. See Robinson v. ToyotaMotor Credit Corp., 201 Ill. 2d 403, 418, 775 N.E.2d 951, 961 (2002) (analysis of whatconstitutes an "unfair practice"). This allegation is thus a mere restatement of the illegality of thefee, which does not defeat the voluntary payment defense.⁽²⁾

In sum, the trial court did not err in dismissing the complaints at issue in theseconsolidated appeals.

For all of the aforementioned reasons, the judgments of the circuit court of Cook Countyare affirmed.

Affirmed.

REID and HARTIGAN, JJ., concur.

1. Plaintiffs limit their discussion of the voluntary payment doctrine to plaintiffs' claims formoney had and received, but the doctrine seemingly applies to any cause of action which seeks torecover a payment made under a claim of right. Smith v. Prime Cable of Chicago, 276 Ill. App.3d 843, 855 n.7, 658 N.E.2d 1325, 1334 n.7 (1995) (and authorities cited therein).

2. Plaintiffs' consolidated reply brief asserts in passing that "[t]he deception is the chargingof an illegal fee." Yet plaintiffs also argue that the law regarding the unauthorized practice of lawis not unsettled and "precisely proscribes the conduct complained of by the plaintiffs." Assumingarguendo that the law is settled with respect to the facts they have alleged, plaintiffs cannot claimthat there was a mistake of fact removing this case from the scope of the voluntary paymentdoctrine or that there was a misrepresentation of material fact within the scope of the ConsumerFraud Act. See Prime Cable, 276 Ill. App. 3d at 847-48, 658 N.E.2d at 1330 (generally, moniespaid under a mistake of law are not recoverable).