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Docket No. 89059-Agenda 13-January 2001.

MIDSTATE SIDING AND WINDOW COMPANY, INC.,
Appellant, v. KENNETH ROGERS et al., Appellees.

Opinion filed April 24, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

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

BACKGROUND

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

In their answer to the complaint, the Rogers admitted thatMidstate is in the home remodeling business, and that they signedthe contract attached to the complaint. The Rogers also admittednotifying Midstate that they did not want Midstate to perform thework at their home. However, the Rogers maintained that thecontract is not enforceable because: (1) it lacks definite and certainterms; (2) it violates the Credit Services Act (815 ILCS 605/1 etseq. (West 1996)), and the Consumer Fraud and DeceptiveBusiness Practices Act (815 ILCS 505/1 et seq. (West 1996)); (3)the Rogers informed Midstate of their intent to cancel the contracton July 28, 1996; (4) Midstate failed to obtain credit for theRogers, a condition precedent to performance of the contract; (5)no payment is due under the terms of the contract; and (6) theRogers believed they were signing an estimate, not a contract. Inaddition, the Rogers filed a counterclaim against Midstate. In thecounterclaim, the Rogers alleged that Midstate's salesman, AlanKlunk, indicated that Midstate would obtain financing for theRogers and/or provide advice or assistance to the Rogers inobtaining an extension of credit. However, in the contract,Midstate failed to describe the services Midstate was to provide inobtaining the extension of credit for the Rogers, in violation of theCredit Services Act and the Consumer Fraud and DeceptiveBusiness Practices Act. The Rogers sought an award of courtcosts, attorney fees and punitive damages.

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

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

"I have considered the evidence and your arguments. Ifind that the Credit Services Organization Act isapplicable to the case at bar. I have considered the casesand find that the Act is to be liberally construed to protectconsumers. Plaintiff qualifies as a Credit ServicesOrganization i.e., that Plaintiff represented to Defendantthat it would assist or obtain for her an extension of credit.

The contract between Plaintiff and Defendant is therebyunenforceable in that it does not comply with [815] ILCS605/7.

Plaintiff argued that inadequate consideration existed tosupport a credit contract. This was simply not true. Inorder to remain competitive, the Plaintiff offered a serviceto prospective buyers to assist them in obtaining financingto purchase siding and windows. In fact, the agreementbetween the Plaintiff and Defendant would never havebeen consummated had the Plaintiff not helped themobtain financing. The Plaintiff's assistance was more thana mere service, but was part of the consideration tosupport the agreement."

The circuit court awarded the Rogers attorney fees and costs in theamount of $6,157.50. However, the court found that the Rogerswere not entitled to an award of punitive damages. Subsequently,the circuit court denied Midstate's motion to reconsider andclarified that Midstate had violated section 7(a)(2) of the CreditServices 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 appellatecourt reasoned that the Credit Services Act applies to retailerswho, in exchange for valuable consideration, aid consumers inobtaining extensions of credit. 309 Ill. App. 3d at 611. Theappellate court held that, by providing assistance to the Rogerswith regard to obtaining an extension of credit as part of anagreement to side their home, Midstate acted within the purviewof the Credit Services Act. In addition the court held that theRogers were entitled to appellate attorney fees under the CreditServices Act.

We granted Midstate's petition for leave to appeal. 177 Ill. 2dR. 315.

ANALYSIS

A. Record on Review

As noted above, a transcript of the evidence at trial is notavailable because the trial was not recorded. In the absence of atranscript, it is incumbent upon the appellant to file a bystander'sreport of the proceedings (166 Ill. 2d R. 323(c)) or an agreedstatement of facts (166 Ill. 2d R. 323(d)). Midstate failed to do so,leading the Rogers to argue that we must affirm the judgments ofthe lower courts because the record on review is incomplete. Wedisagree.

Midstate, as appellant, has the burden of presenting asufficiently complete record of the proceedings at trial to supporta 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 trialcourt was in conformity with the law and had a sufficient factualbasis (Webster v. Hartman, 195 Ill. 2d 426, 433 (2001); Foutch, 99Ill. 2d at 392). The court will resolve any doubts arising from theincompleteness 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 theevidence presented at trial was sufficient to support the trialcourt's finding. See Buckholtz v. MacNeal Hospital, 313 Ill. App.3d 521, 526 (2000) (plaintiff maintained that the record fails toestablish 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 atissue. This is a question of law, and the lack of a complete recorddoes not bar our review. Candice Co. v. Ricketts, 281 Ill. App. 3d359, 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. 2d225, 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 thetransaction at issue, we are guided by established principles. Theprimary rule of statutory construction is to ascertain and giveeffect to the intent of the legislature. Bridgestone, 179 Ill. 2d at149, 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, weexamine the language of the statute, the most reliable indicator ofthe legislature's objectives in enacting the law. Michigan AvenueNational Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). Weafford the language of the statute its plain and ordinary meaning(Michigan Avenue National Bank, 191 Ill. 2d at 504) and construethe statute as a whole (Sylvester, 197 Ill. 2d at 232). Words andphrases must not be viewed in isolation but must be considered inlight of other relevant provisions of the statute. Sylvester, 197 Ill.2d at 232; Michigan Avenue National Bank, 191 Ill. 2d at 504. Wealso presume that in enacting the statute the legislature did notintend absurdity, inconvenience, or injustice. Michigan AvenueNational 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 asenacted by the legislature. Henrich v. Libertyville High School,186 Ill. 2d 381, 391 (1998). It is never proper for the courts todepart from the plain language of the statute by reading into itexceptions, limitations or conditions which conflict with the intentof the legislature. Bridgestone, 179 Ill. 2d at 149, quoting HarveyFiremen's Ass'n v. City of Harvey, 75 Ill. 2d 358, 363 (1979).There is no rule of statutory construction which authorizes thecourts to declare that the legislature did not mean what the plainlanguage 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 argumentsadvanced by the parties. Citing section 3 of the Credit ServicesAct (815 ILCS 605/3 (West 1996)), the Rogers maintain thatMidstate is a credit services organization because Midstate agreedto help the Rogers obtain financing for the improvements to theirhome. Midstate counters that it provided a gratuitous service to theRogers in forwarding their loan application to the financialinstitutions. Midstate maintains that, in enacting the CreditServices Act, the legislature did not intend to regulate the actionsof retailers, such as Midstate, in facilitating the extension of creditto their customers. We agree with Midstate that the legislature didnot 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 topurchase or who purchases the services of a creditservices organization.

* * *

(d) 'Credit Services Organization' means a person who,with respect to the extension of credit by others and inreturn for the payment of money or other valuableconsideration, provides, or represents that the person canor will provide, any of the following services:

(i) improving a buyer's credit record, history, orrating[;]

(ii) obtaining an extension of credit for a buyer; or

(iii) providing advice or assistance to a buyer withregard to either subsection (i) or (ii)." 815 ILCS605/3(a), (d) (West 1996).

Looking to the definition of a "[b]uyer" and the definition of a"[c]redit [s]ervices [o]rganization," it is clear that the CreditServices Act regulates transactions involving the payment ofmoney or other valuable consideration in return for the services ofthe credit services organization. In turn, the services of the creditservices 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 withregard to "obtaining an extension of credit" for the buyer. 815ILCS 605/3 (West 1996). Thus, the Credit Services Act requirespayment for credit services, not simply payment for other goods orservices.

In the present case, the circuit court rejected Midstate'scontention that there was inadequate consideration to support acontract for credit services. The circuit court observed:

"In order to remain competitive, the Plaintiff offered aservice to prospective buyers to assist them in obtainingfinancing to purchase siding and windows. In fact, theagreement between the Plaintiff and Defendant wouldnever have been consummated had the Plaintiff nothelped them obtain financing. The Plaintiff's assistancewas more than a mere service, but was part of theconsideration to support the agreement."

In this, the circuit court committed error. The Credit Services Actrequires that the credit services organization, in return for thepayment of money or other valuable consideration, agree toprovide, or represent that it will provide, credit services to thebuyer. The services must be related to an extension of credit forthe buyer or improvement of the buyer's credit record, history orrating. The contract at issue does not provide for payment ofmoney or other valuable consideration in return for credit servicesprovided by Midstate. Instead, the agreed consideration is forpayment of windows and siding to be installed at the Rogers'home. Although we agree with the circuit court that the Rogerswould not have proceeded with the installation of the windows andsiding without assistance in obtaining an extension of credit, theCredit Services Act requires additional consideration for suchassistance.

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

"No credit services organization *** shall:

***

(2) Charge or receive any money or other valuableconsideration solely for the referral of a buyer to a retailseller who will or may extend credit to the buyer if suchextension of credit is in substantially the same terms asthose available to the general public." (Emphases added.)815 ILCS 605/5 (West 1996).

The section prohibits a credit services organization from charginga fee for referrals to a retail seller. The section also recognizes thata retail seller is an entity that may extend credit to a buyer. Themajor distinction between a credit services organization and aretail seller is that the credit services organization, in return for thepayment of money or other valuable consideration, offers servicesto a buyer dedicated to improving the buyer's credit history orrating or to obtaining an extension of credit for the buyer.

Our interpretation of the statutory language is also consistentwith the legislative findings and declarations set forth in the Act.Section 2 of the Credit Services Act (815 ILCS 605/2 (West1996)) provides in part:

"(a) The ability to obtain and use credit has become ofgreat importance to consumers who have a vital interestin establishing and maintaining their credit worthinessand credit standing. As a result, consumers who haveexperienced credit problems may seek assistance fromcredit service businesses which offer to improve the creditstanding of such consumers. Certain advertising andbusiness practices of some companies engaged in thebusiness of credit services have worked a financialhardship upon the people of this State, often on those whoare of limited economic means and inexperienced incredit matters.

(b) The purpose of this Act is to provide prospectiveconsumers of credit services companies with theinformation necessary to make an informed decisionregarding the purchase of those services and to protect thepublic from unfair or deceptive advertising and businesspractices."

The Credit Services Act is aimed at remedying problemsencountered by consumers seeking to improve their credit historyor rating, obtain more favorable terms on current debt, or obtain anextension of credit through services provided by credit servicesorganizations. As such, the Credit Services Act prohibits creditservices organizations from engaging in certain conduct (815 ILCS605/5 (West 1996)) and requires that credit services organizationmake certain disclosures to the buyers (815 ILCS 605/6, 7 (West1996)). The Credit Services Act is not intended to regulateretailers primarily engaged in the business of selling goods andservices to their customers. The goods and services provided byretailers are not generally services aimed at improving theconsumer's credit or obtaining an extension of credit for theconsumer, otherwise unattainable because of the consumer's poorcredit history or rating. See Fogle v. William Chevrolet/Geo, Inc.,No. 99-C-5960 (N.D. Ill. August 9, 2000) (mem. op.).

CONCLUSION

For the aforementioned reasons, the judgments of theappellate court and circuit court are reversed, and the cause isremanded to the circuit court for further proceedings consistentwith this opinion.

Appellate court judgment reversed;

circuit court judgment reversed;

cause remanded.

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

The majority ignores the plain language of the Act and theundisputed facts of this case. The majority does not stop there. Italso reads a requirement of "additional consideration" into the Act.Slip op. at 7. Based on these fundamental errors, the majorityconcludes that Midstate is not a "credit services organization."Because I cannot agree with that erroneous conclusion, Irespectfully dissent.

Initially, the majority cites the statutory definition of a creditservices organization, encompassing "a person who *** in returnfor the payment of money or other valuable consideration" eitherobtains "an extension of credit for a buyer; or *** provid[es]advice or assistance to a buyer with regard to" obtaining anextension of credit. (Emphasis added.) 815 ILCS 605/3(d)(ii),(d)(iii) (West 1996); slip op. at 6. The majority also notes that thestatutory definition of a "[b]uyer" is one "who is solicited topurchase or who purchases the services of a credit servicesorganization." 815 ILCS 605/3(a) (West 1996).

After briefly acknowledging these definitions, however, themajority does not consider their application in this case, choosinginstead to conclude summarily that Midstate is not a creditservices organization because "the Credit Services Act requirespayment for credit services, not simply payment for other goods orservices." Slip op. at 15. This conclusion fails to analyze fully thekey issue in this case, namely, whether Midstate's conduct bringsit within the statutory definition of a credit services organization.The majority omits a fundamental analytical step by not applyingthe Act to the relevant facts underlying the parties' transaction. Acomplete analysis requires us to examine the undisputed facts inthis case.

When the Midstate sales representative who met the Rogersin their home informed them of the total cost of the remodelingproject, the Rogers explained that they had limited income andcould not afford the project. Mr. Rogers is disabled, with a grossincome of only $9,540 per year, and Mrs. Rogers works as a nurse,earning an annual gross income of $19,760. As the majorityadmits (slip op. at 7), the Rogers ultimately agreed to the contractonly because Midstate offered its services to help them obtainthird-party financing. The parties' agreement indicated no cashpayments and stated that the contract amount of $19,600 wassubject to a loan. It disclosed no information about the applicableinterest rates or monthly payment amount.

Midstate concedes that it assisted the Rogers in securing athird-party loan. One of its sales representatives provided theRogers with a credit application and directed them to complete it.The representative informed the couple that Midstate would obtainfinancing for them and that they would make monthly paymentsfor approximately 15 years. Again, the representative failed toprovide any information concerning the actual amount of themonthly payments.

After the representative's visit, a Midstate loan assistanceemployee reviewed the Rogers' credit application. The employeetestified that Midstate assists customers with financing and thather job is to help qualify customers for loans. In this capacity, shereviews more than 50 credit applications each week. In this case,she received the Rogers' credit application, reviewed it, and thencontacted a number of lending institutions on their behalf,forwarding their credit application in an effort to secure a loan.The first three institutions she contacted refused to extend creditto the Rogers. Eventually, Midstate secured a loan commitmentfrom Bank One at a rate of 11.35%, adjustable monthly, but theRogers found this interest rate unacceptable. The record containsno evidence that the Rogers ever independently met, or otherwiseundertook loan negotiations, with any lending institution. Thus,Midstate acted as a de facto representative for the Rogers inobtaining the loan commitment, for the mutual benefit of bothparties.

When we focus on the specific facts of the transactionbetween the parties in this case, we must conclude that Midstate'sactions went far beyond simply selling goods to the Rogers, as themajority claims. Slip op. at 7. Midstate's conduct fulfilled two ofthe Act's key criteria, not only "providing advice or assistance toa buyer with regard to" "obtaining an extension of credit," but alsoactually obtaining an extension of credit for the Rogers. See 815ILCS 605/3(d)(ii), (d)(iii) (West 1996). The trial court properlyfound Midstate's acts went beyond mere ancillary servicesperformed in conjunction with a retail sale and fall squarely withinthe statutory definition of those provided by a "[c]redit servicesorganization." See 815 ILCS 605/3(d)(ii), (d)(iii) (West 1996).

To determine whether Midstate itself was a credit serviceorganization under the Act in this case, however, we must addresstwo other, closely interrelated questions: (1) whether Midstateperformed the credit services "in return for the payment of moneyor other valuable consideration" (emphasis added) (see 815 ILCS605/3(d) (West 1996)) and (2) whether the Rogers were "buyers"under the statute, meaning that they either were "solicited topurchase" or actually purchased the services of a credit servicesorganization (see 815 ILCS 605/3(a) (West 1996)).

In answering these questions, the majority abruptly concludesthat "the agreed consideration is for payment of windows andsiding" and is not "in return for credit services provided byMidstate." Slip op. at 7. Based on that conclusion, the majorityholds that Midstate is not a credit services organization. Themajority's rationale is belied, however, by its subsequent statementagreeing "with the circuit court that the Rogers would not haveproceeded with the installation of the windows and siding withoutassistance in obtaining an extension of credit." (Emphasis added.)Slip op. at 7. The circuit court expressly found that

"[i]n order to remain competitive, the Plaintiff [Midstate]offered a service to prospective buyers to assist them inobtaining financing to purchase siding and windows. Infact, the agreement between the Plaintiff and Defendantwould never have been consummated had the Plaintiff nothelped them obtain financing. The Plaintiff's assistancewas more than a mere service, but was part of theconsideration to support the agreement." (Emphasesadded.) See slip op. at 6-7.

Despite its stated agreement with this finding, the majoritynonetheless declares that "the Credit Services Act requiresadditional consideration for such assistance." (Emphasis added.)Slip op. at 7. This conclusion is unsupported by any language inthe Act. Thus, the majority both overlooks the plain language ofthe statute and creates other requirements out of whole cloth,without any legal justification.

The majority cites section 5 of the Act as consistent with thisconclusion, but the connection between the two concepts remainsunexplained. Section 5 prohibits credit services organizations fromreceiving valuable consideration solely for referring buyers toretail sellers who may extend credit "if such extension of credit isin substantially the same terms as those available to the generalpublic." 815 ILCS 605/5 (West 1996). First, there is nothing in therecord to suggest that this case meets the criteria in section 5.Indeed, the record strongly suggests the opposite conclusion, i.e.,the Rogers would not have been able to obtain the necessaryfinancing "in substantially the same terms as those available tothe general public." Thus, section 5 is not implicated in this case.

Even more importantly, section 5 appears completelyunrelated to the majority's finding that "the Credit Services Actrequires additional consideration" for Midstate's assistance inobtaining financing for the Rogers. Slip op. at 7. As the majorityaptly notes (slip op. at 5), we must not depart from a statute's plainlanguage by reading into it exceptions, limitations, or conditionsnot clearly intended by the legislature. See Bridgestone/Firestone,Inc. v. Aldridge, 179 Ill. 2d 141, 149 (1997). Yet, the majoritydeparts from this same fundamental rule of construction byreading into the Act a requirement that an agreement to assistanother in obtaining third-party financing be accompanied bysome form of "additional consideration." See slip op. at 7. Themajority does not, and cannot, point to any language in the Actsupporting this limitation.

Contrary to the majority's rationale, to bring a credit servicesorganization within the ambit of the Act does not require anyadditional monetary payment for performing the credit-relatedservices. The Act expressly requires only that the services beprovided "in return for the payment of money or other valuableconsideration." (Emphasis added.) 815 ILCS 605/3(d) (West1996).

Here, Midstate induced the Rogers to enter into theremodeling project by offering to arrange a loan for them, and itsubsequently fulfilled this promise. As the majority admits, theRogers' agreement to proceed with the contract was strictlycontingent on Midstate's proffered assistance in obtaining credit.Slip op. at 7. By expressly agreeing with the trial court's findingthat "the Rogers would not have proceeded" with the contractwithout Midstate's substantial assistance in obtaining the requisitefinancing (slip op. at 7), the majority also implicitly acknowledgesthat Midstate's credit assistance was in fact supported by "othervaluable consideration" (see 815 ILCS 605/3(d) (West 1996)), i.e.,the Rogers' ultimate agreement to enter into the remodelingcontract. This acknowledgment contradicts the majority'sconclusion that Midstate's credit services were gratuitous and notsupported by "additional consideration" (slip op. at 7). As themajority admits, Midstate's assistance constituted an integral partof the parties' contract, received in exchange for valuableconsideration.

By giving "other valuable consideration" for Midstate'sproffered credit services, in addition to the promise of monetarypayment for windows and siding as noted by the majority (slip op.at 7), the Rogers were "buyers" under the Act. 815 ILCS 605/3(a)(West 1996) (defining a "[b]uyer" as one "who is solicited topurchase *** the services of a credit services organization). Underthese facts, Midstate clearly falls within the statutory definition ofa "credit services organization," with the Rogers acting as"buyers" of that organization's credit services. See 815 ILCS605/3(a), (d) (West 1996). Therefore, the parties agreed to theprovision of credit services "in return for the payment of *** othervaluable consideration" (815 ILCS 605/3(d) (West 1996)), andtheir transaction was governed by the Act.

Holding that Midstate's conduct in this case qualified it as acredit services organization is consistent with the Act's stated goalof providing "prospective consumers of credit services companieswith the information necessary to make an informed decisionregarding the purchase of those services and to protect the publicfrom unfair or deceptive advertising and business practices." 815ILCS 605/2(b) (West 1996). These protections were prompted by"[c]ertain advertising and business practices of some companiesengaged in the business of credit services [that] have worked afinancial hardship upon the people of this State, often on thosewho are of limited economic means and inexperienced in creditmatters." 815 ILCS 605/2(a) (West 1996). As prospectiveconsumers of Midstate's credit services, the Rogers were entitledto these protections.

As a credit services organization, Midstate was bound by thestatutory mandates contained in sections 6 and 7 of the Act (815ILCS 605/6, 7 (West 1996)). Since the parties' contract failed tocomply with the mandatory terms of the statute, including therequirement of full disclosure of "the terms and conditions ofpayment, including the total of all payments to be made by thebuyer" (815 ILCS 605/7 (West 1996)), it violated the statute. "Anycontract for services which does not comply with applicableprovisions of [the Act] shall be void and unenforceable as contraryto public policy." 815 ILCS 605/8 (West 1996).

For this reason, the trial court and the appellate court properlydeemed the contract void and awarded the Rogers attorney feesunder section 11 of the Act (815 ILCS 605/11 (West 1996)). Iwould affirm the appellate court on this issue and remand thecause to the trial court with instructions to award reasonableattorney fees in favor of the Rogers.

I also believe the trial court's ruling could be affirmed on thealternative basis that the contract violated the Consumer Fraud andDeceptive Business Practices Act (Fraud Act) (815 ILCS 505/1 etseq. (West 1996)). The Rogers raised this issue in theircounterclaim, but the trial and appellate courts did not address it.The Fraud Act provides that "the use or employment of any ***misrepresentation or the concealment, suppression or omission ofany material fact, with intent that others rely upon" it constitutesan "[u]nfair method[ ] of competition and unfair or deceptive act[ ]or practice[ ]." 815 ILCS 505/2 (West 1996). Such conduct isunlawful regardless of "whether any person has in fact beenmisled, deceived or damaged thereby." 815 ILCS 505/2 (West1996). In this case, the contractual interest rate was undoubtedlya material fact, but it was not disclosed when the Rogers enteredinto the agreement with Midstate. Because Midstate omitted theapplicable interest rate from the contract, it violated the Fraud Act.For this reason, I would affirm the award of attorney fees to theRogers pursuant to section 10a(c) of the Fraud Act (815 ILCS505/10a(c) (West 1996)).