## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hubbard Street Lofts LLC v. Inland Ban k , 2011 IL App (1st) 102640

Appellate Court Caption HUB BA RD STREET L OFT S L L C and ANDREW RUTTENB ERG, on Be half of Themselves and All Those Simi larly Situated, Plaintiff s

Appellants, v. I

NLAND B ANK, a s Successor in Intere st to AmeriMark Ba nk, Def endant- Appellee

.

District & N o. First District, Second D ivision Docke t No. 1-10-2640

Filed Dec ember 13, 2011

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from a loan plaintiffs obtained from defe ndant bank, the trial court proper ly dismiss ed plaintiffs’ claims, inter alia
, that the bank char g ed an interest rate above the rate permitted by the Intere st Act and the Promissory Note and Ba nk Holiday Act, that the use of a 365/360 method of calc ulating interest violated the I n t er es t Act, that it violated the Credit Ag ree ment s Ac t and the Consumer Fr aud Act, and that it committed common law fra ud.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-CH-49410; the Hon. Mary

Anne Ma son, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Seg al, McCambridg e, Singer & Mahoney
, L td., of Chicag o (S teven A. Har t, Scott W. Hen ry , and Anastasios T. Fouka s, of counsel), for appellants.

Foley & L ardne r L L P, of Chicag o (Will iam J

. McKe nna and Thomas C. Har dy , of counse l), for a

ppellee.

Panel J USTI CE CUNNI NGHAM delivere d the judgme nt of the court, with opinion. Presiding J ustice Quinn and Just ice Connors c oncurr ed in the judgme nt and opinion.

OP INION

¶ 1 This appea l arises fr o m a J u l y 2 8
, 2 0 10 order enter ed by the circ uit court of Cook County
, which gra n t ed defe ndant-a ppellee Inland Ba

nk’s motion to dismiss a class action complaint on all counts with prejudice

. On appea l, the appellants, Hubbar d Street L ofts L L C and Andre w Ruttenberg
, argue that: (1) the trial court err ed in dismiss in g t h e counts for brea ch of contra ct, violation of the I llinois Intere st Act (Intere st Act) (815 I L CS 205/1 et seq. (West 2010)), and decla

ratory judgme nt in the appellants’ complai n t b eca use the court misint erpr eted sections 9 and 10 of the Intere st Act; (2) the trial court improperly dismiss ed the breach of contra ct count in the appellants’ complaint beca use t he promiss ory note was ambig uous; a

nd (3) the trial court err ed in dismissing the counts for brea ch of the oral loan
prepa rat i o n contra ct, violation of the Consumer Fr aud and Dec eptive Practice s Act (Consumer Fr aud Act) (815 I L CS 505/1 et seq. (West 2010), and common law fra ud in the appella n t s ’ co mplaint beca use the promissory note at issue was written and signe d by the parties. For the following rea sons, we aff irm the judgme nt of the circ uit court of Cook County

.

¶ 2 BA CKGROUND ¶ 3 On or around Marc h 17, 2006, plainti ff s -ap p el l an t s Hu b bard Street L ofts, L L C and Andre w Ruttenberg (collec tively
, Hubbar d Street L ofts) obtained a loan of $6,400,000 from Amer i Mark Ba

nk, whose succe ssor in interest in this case is Inland Ba nk. Hubbar d Street L ofts claim that prior to the draf ting of the promissory n o t e (the Note), the parties had an ag reem en t t h at Hubbar d Street L ofts would pay AmeriMar k Ba nk a fee to draf

t a loan document based on the repr esentation that the interest rate on the loan would be 8.000% per y ear

. The Note conta ined in the re cord is the loan document that memorialized the parties’
ag ree ment. The Note is 11⁄2 pag es long and contains multipl e sections that are at issue in the

case including:

-2-(1) The heading , which states:

“ P rincipal Am ount: $6,400,000.00 Initial Rate: 8.000% Date of Note: M arch 17, 2006 ”

(2) The pay

ment section, which state s (in rele vant par t):

“ P AYMENT. *** The annu al intere st rate for this Note is com puted on a 365/360 basis; that is, by appl ying the rati o o f th e a n nual Intere st rate over a year of 360 days, m ultip lied by the outstandi ng principal balan ce, m ultip lied by the act ual n um ber of days th e principal b alance is outstandi ng. ” (3) The varia

ble intere st rate se ction, which states:

“ VARIABL E I N TE R

EST RATE. The interest rate on this Note is subject to chang e from ti me t o time based on chang es i n an index which is L ender ’s P rime R ate (the ‘index’). This is the rate L ender char g es, or would char g e, on 90-day unsecur ed loans
to the most cre ditworthy corpor ate customers. This rate may or may not be the lowest
rate available from L ender at any g iven t ime. L ender will tell Borrow er the curr ent Index rate upon Bor

rowe r’s reque st

. T h e i n t ere st rate chang e will not occur more often than eac h Day

. Bor rowe r understands that L ender m ay make loans based on other rate s as well. The Ind ex curre ntly is 7.500% per annu m . The intere st rate to be appl ied to the unp aid principal bal a n ce o f th i s Note wi ll be at a rate of 0.500 perce ntage poin ts over the ind ex, resulting in an Initial rate of 8.000% per

annu m . NOTI CE: Under no circ umstances will the Intere st rate of this Note be more than the maximum rate allowed by applicable law.” (4) The signa

ture c lause, whic h states:

“ P RIOR TO SIGNING THIS NOTE, BORROWER REA D AND U N D ER ST OO D A LL TH E P R OV I SI ON S OF TH I S N OT E, I N C LU D I N G TH E VARIABLE INTERES T RA T E P ROVISIONS. BORROWER AG REES TO THE T ERMS OF THE NOTE. ” ¶ 4 Most notable is the pay ment section of the Note an d t he way it provides for interest to be calc ulated. A rec ent decision in the I llinois Appellate Court, First District, shed some light

on the differ ent methods of interest calc ulation that are curr ently used by lender s. This court noted that banks g ener ally use three differ ent methods of computing interest, which are the 3 6 5 /3 6 5 method (exact-da y interest), the 360/360 method (ordinar y inte r e s t)
, a

n d th e 3 6 5 /3 6 0 method (b an k interest). Asset Exc hange II, LLC v. First Choice Bank
, 2011 I L App (1st) 103718, ¶ 20 (quot i ng In re Oil Spill by the “Amoco Cadiz” off the Coast of France on March 16, 1978
, No. 92-3282, 1993 WL 360955, *1-2 (7th Cir. Sept. 14, 1993)). The exact- 1 day method is calculated by

takingan intere st rate, dividingit by 365, and then a

pplying it
to eac h day of t he y ear

. The ordinary interest rate method is calc ulated the sa me way , only using 360 as the number of day s instead of 365. The 365/360 bank method, which was used in the Note in the instant case, i s s l ightly differ ent. I t is calc ulated by first dividing the interest rate by 360, and then applying it to eac h day in a 3 65- or 366-day year

. This

We not e tha t the pla int if fs ’ at tor neys in Ass et Exc hang e ar e the same at tor neys tha t 1

re pre sen t Hubba rd Str eet Lof ts in th e i nst antca se.

-3-eff ectively allows the banks to char g e an extra fi ve or six day s of interest eac h y ear

. The application of this method is the basis of the pa rties’ dispute in this case. ¶ 5 On Dec ember 9, 2009, Hubbar d Street L ofts filed a seven- coun t cl as s ac t i o n lawsuit
ag ainst AmeriMar

k Ba nk in the circ uit court of Cook County
, claiming that: (1) AmeriMar k Ba nk brea ched the contra ct with Hubbar d Street L ofts by charg ing an interest rate above the
rate permitted by the Intere st Act and the Promissory Note and Ba nk Holiday Act (Promissory Note Act) (815 I L CS 105/0.01 et seq. (West 201 0 )); (2) AmeriMar k Ba nk brea ched an oral loan preparation contra ct; (3) AmeriMark Bank char gi n g i n tere st using a 365/360 method of calc ulation violated the Intere st Act; (4) AmeriMar k Ba nk brea ched the duty of g ood faith and fair dealing ; (5) AmeriMar k Ba nk violated the Consumer Fr aud Act; (6) AmeriMar

k Ba nk committed common law fra ud; and (7) seeking decla

ratory judgme nt in relation to Hubbar d Street L ofts’ Intere st A ct claims. On J anuar y 15, 2010, Inland B ank filed an appea

ranc e as the succe ssor in interest for AmeriMar k Ba nk. Hubbar d Street L ofts then moved for

substitut ion of judg e which w as g rante d on Fe bruar y 3, 2010. ¶ 6 On Fe bruar

y 16, 2010, Inland Ba

nk filed a motion to dismiss the complaint pursuant to section 2-615 of the I llinois Code of Civil Procedur e (735 I L CS 5/2-615 (West 2010)), and
to strike the class alleg ations pursuant to section 2-8 01 of the I llinois Code of Civil Procedur e (735 I L CS 5/2-801 (West 2010)). Hubbar d Street L ofts filed a response to Inland Ba n k ’s m otion on Marc h 24, 2010, that claimed that: (1) the complaint could not b e dismiss ed beca

use the Note is ambig uous and permits multipl e interpre tations; (2) Hubbar d Street L ofts sufficie ntly stated a cause of action under the Intere st Act; (3) Inland Ba nk had discretion in the manner it char g ed interest to Hubbar d Street L ofts and used this discretion in violation of the duty of g ood faith and fair dealing ; (4) Inland Ba nk committed c ommon law fra ud; and (5) class actions are not limit ed to individuals. Hubbar d Street L ofts also filed 2 a suppl emental response to Inland Bank’s mot ion asking the court to follow the re asoning used in Martinucc i v. First Suburban National Ba nk of May

wood, No. 09 L 12936 (Cir. Ct. Cook Co.). ¶ 7 On J uly 28, 2010, the trial court hear d oral arguments by both parties. Inland Ba nk argued that the Intere st Act did not apply to the Note in this case and that Hubbar d Street L ofts’ first, third and seventh counts based on the Intere st Act wer e there fore resolved. Inland Ba nk also claimed the that Credit Ag ree ments Act (Credit Ag ree ments Act) (815 I L CS 160/0.01 et seq. (West 2010)) barr ed Hubbar d Street L ofts’ second count for brea ch o f an oral loan
prepa ration contra ct and that Hubbar d Street L ofts should not be cer tified as a class. Hubbar d Street L ofts argued that the Note is ambig uous; that the Intere st Act applies to the Note and
presc ribes that the interest be calc ulated over a full 12-month y ear consisting of 365 day s (the exact-day method); and that the Credit Ag ree ment Act does not apply in this case to bar their b re ac h of an oral loan prepa ration contra ct count. The trial court held that the Credit Agr ee m ents Act did in fac t bar Hubbar d Street L ofts’ count for brea ch of an oral loan
prepa ration contract. The trial court also found sua sponte that the C redit Agre ements Act

T her e was an add it ion al cl a i m i n t h i s mem ora ndum; however
, two of the pages of the 2

m emorandum

ar e missi ng fro m

th e r eco rd andca nnot be loc at ed.

-4-also barr ed Hubbar d Street L ofts’ brea ch of dut y o f g ood faith and fair dealing count,

Consumer Fr aud Act count, and common law fra ud count. The trial court rea soned that these
counts wer e based on alleg ed oral ag ree ments that wer e not memorialized by the Note, and thus these counts wer e “exactly the t y p es o f claims that the [C redit Ag ree ments] Act is desig ned to fore close.” The trial court fou n d t h at d es pite the deficiencie s under the Credit Ag ree ments Act, Hubbar d Street L ofts’ Consumer Fr aud Act count would fail beca u se Hubbar d Street L ofts are sop h is ti c a te d b u s in ess persons and there fore not “consume rs” under the Consumer Fr aud Act that aff ords protec tion. Also, the trial court held that the common law fra ud count would fail for lack of specific ity

. Reg arding Hubbar d Street L ofts’ Intere st Act claims, the trial court found that the Intere st Act is a g ap-f illing provision a

nd does not apply to the Note beca

use the parties ag ree d on the method of calc ulation. T h e t ri al court ruled that the Intere st Act does not require a mention of the method of computation eac h and

ever y time an interest rate is mentioned. The trial court also ruled that the Note was unambig uous. The trial court dismiss ed all counts with prejudice
, holding that there wer e no amendments Hubbard Street L ofts could make that would state a proper cause of action. Be cause all the counts were dism issed, the t rial court did not rea ch a decision on the i ssue of the motion to strike the class alleg ations. On August 27, 2010, Hubbar d Street L ofts filed their notice of

appea l.

¶ 8 ANALYSI S ¶ 9 Inland Bank, i n the l ower cou rt , filed a motion to dismiss pursuant to section 2-615 of the I llinois Code of Civil Procedur e (735 I L CS 5/2-615 (West 20 10)) and to strike the plaintiffs’ class alleg ations pursuant to section 2-801 of the I llinois Code of Civil Procedur e (735 I L CS 5/2-801 (West 2010)). The trial court g rante d Inland Ba nk’s section 2-615 motion to dismiss all counts and ther efor e re ndere d the issue of the se ction 2-801 motion moot. In this court, Hubbar d Street L ofts only raise arguments reg arding the section 2-615 motion and that is all that we will consider in thi s case . When review ing a n order g rantinga motion to dismiss pursuant to section 2-615 of the I llinois Code of Civil Procedur e, this court utiliz es the de novo standard of revie w. Neppl v. Murphy
, 316 I ll. App. 3d 5 8 1, 583, 736 N.E.2d 1174, 1178 (2000). The critica l inquiry is whether
, in the light most favor able to the plaintiff, the alleg ations of the complaint are sufficie nt to state a cause of action upon which relief can be g rante d. Board of

Directors of

Bloomfield Rec reation Ass’n v. Hoffman Group, Inc.
, 186 I ll. 2d 419, 424, 712 N.E.2d 330, 333 (1999). ¶ 10 We first consider Hubbar d Street L ofts’ claim that the trial court err ed by dismiss ing the ir first, third, and seventh counts beca use the court misint erpr eted sections 9 and 10 of the Intere st Act. In rele vant par t, section 9 of the Intere st Act states: “Wheneve r, in any statute, act, deed, written or v erba l, contra ct, or in any public or private instrument whateve r, any cer tain rate of interest is or shall be mentioned, and no period of time is stated for which such rate is to be calc ulated, interest shall be calc ulated
at the rate mentioned, by the year , in the same manner as if ‘per annum’ or ‘by the y ear ’ had bee n added to the r ate.” 815 I L CS 205/ 9 (West 2010). Additionally , section 10 of the I ntere st Act States:

-5-“In all computations of time, and of interest and discounts, a month shall be considere d
to mean a cale n d ar month, and a year shall consist of twelve cale ndar months; and in computations of interest or discount for any number of day s less than a month, a day shall be considere d a thirtieth part of a month, and interest or discount shall be computed for such fra ctional parts of a month upon the ratio which such number of day s shall bear to thirty .” 815 I L CS 205/ 10 (West 2010). Section 16 of the Promissory Note Act, also cit ed by Hubbar d Street L ofts, is identical to section 10 of the Intere st Act. Hubbar d Street L ofts argue that section 10 of the Intere st Act statutorily define s the term “y ear ” as the cale ndar y ear of 12 months in all computations of time related to deter

mining interest. Also, Hu b b ar d S t ree t L ofts claim that section 9
presc ribes that the 12-month y ear applies to ea ch and e very instance where an int ere st rate is mentioned in an instrument and wher e no period of time is stated in the written document for such rate to be calc ulated. Hu b b ar d Street L ofts point out that the heading of the Note states “I nitial Rate: 8.000%” and the variable i nt erest rate section of the Note states “[ t] he index is curr ently 7.500% per annum. The interest rate to be applied to the unpaid principle balanc e of this Note will be at a rate of 0.500 perc entag e points ove r the index, re sulting in

an initial rate of 8.000% per annum.” They contend that beca use these portions of the Note do not also contain a specific period of time, the Intere st Act applies the 12-month cale ndar
y ea r t o t h es e sections. Hubbar d Street L ofts arg ue that these sections control over the 365/360 calc ulation method mentioned in the pay ment section of the Note. In support of this
argument, Hubbar d Street L ofts cite two trial court decisions fr o m t he Twentieth J udicial District in St. Clair, I llinois

. In both case s, the trial court h eld that eac h and ever y time an interest rate is me ntioned without a time period for which it is to be calc ulated, the Intere st Act applies the 12-month y ear to the interest rate

. Kitson v. Ba nk of Edwar dsville, No. 02-L

0807 (Cir. Ct. St. Clair Co., J an. 24, 2008); Patterson v. Reg ions Ba nk, No. 06-CH-436 (Cir. Ct. St. Clair Co., Mar. 27, 2008). The citation of trial cour t r ulings in the appellate court is unusual to say the least. Fur ther, it is nonbinding on this court. Multipl e ruling s made by this court de feat Hubbard Stree t L ofts’ cla ims and are much more pe rsuasive a nd applicable to the instant case

. ¶ 11 Throug h a motion to file supplemen t al au t h o ri ty , Inland Ba nk cites a rec ent case that
appea red in this court. In that case , the appellate co u rt ruled on many of the same issues
prese nted in the instant case

. Those issues resulted from a promissory note that co n t ai n ed identical langua g e and provisions as t he Note at i s s u e in this case

. We there fore rely upon the analy sis and rea soning in that case to g uide us in resolving the issues in this case

. In Asset Exc hange II, LLC
, 2011 I L App (1st) 103718, the plaintiffs, as in the instant case , cited two trial co u rt d ec i s i ons from the Twentieth J udicial District in support of their claim that the defe ndant acte d dece ptively in using a 360-day y ear to calc ulate the interest rate

. The appellate court in Asset Exc hange rea soned that “cir cuit court decisions have no prec edential eff ect on I llinois appellate courts, and there fore have no bear ing on our decision.” Id

. at 19

n

. 2

. W e ag ree with this rea soning and find Hubbar d Street L ofts’ citations to Kitson an d Patterson u n persua sive. A more detailed analy sis of Asset Exc hange will be particula rly instructive for the issues in this case. ¶ 12 In Asset Exc hange , the par ties entere d into a loan ag ree ment for $1,250,000. Id . at ¶ 4.

-6-The heading of the note stated “Initial Rate: 8.25,” and the pay ment section stated “The annual interest rate for this Note is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a y ear of 360 day s, multipl ied by the outstanding p rincipal balanc e, multipl ied by the actua l n u m b er of day s the principal balanc e is outstanding.” (Interna l quotation m ar k s o m i t t ed.) Id

. The varia ble interest rate section, in rele vant part, stated “[t] he index is curr ently 7.250% per annum. T h e i n t ere st rate to be applied to the unpaid principal balanc e during this Note will be at a rate of 1.000 perc entag e point over the Index, resulting in an initial rate of 8.250% per annum.” (Emphasis omit t ed.) (Interna l
q u o t ation marks omi tted.) Id

. at ¶ 5. The plainti ffs in Asset Exc hange filed a seve n -c o u n t 3 class action lawsuit alleg ing that the defe ndants dece ptively applied the 365/360 interest rate calc ulation method and that I llinois law re quired the r ate to be c alculate d based on the 12- month cale ndar y ea r. Id

. at ¶ 7. The trial court dismiss ed the plaintiffs’ first, third, fourth, six th and seventh counts with prejudice
, and dismiss ed the plaintiffs’ second and fifth counts without prejudice

. Id

. at ¶ 1. The plaintiffs appea led arguing that the trial court misint erpr eted the Intere st Act; the trial court err ed in dismiss ing the brea ch of contra ct claim; and the trial
court e rre d in dismi ssing the c ommon law fra ud claim. Id . at ¶ 2. ¶ 13 The appellate court held primarily that section 4 of the Intere st Act shows that it does not apply to c orporations. Id

. at ¶ 21. Fur ther, the court found that even if the Intere st A ct wer e to apply
, the plaintiffs’ claims would still fail. Id

. at ¶ 24 provision and did not require a time period to be inserted with eac h and ever y mention of an interest rate ; that the explanation of the 365/360 calc ulation method in the pay ment section of the note was sufficie n t to deter mine the way the interest rate would be calc ulated throug hout the note; and that the note

was unambig uous. Id

. at ¶¶ 27-30. The court found t h at t h e ex planation of the 365/360 calc ulation me thod qua lified as statinga time per iod for ca lculation within the instrument. Id

. at ¶ 30. The court rea soned that it wo uld not be prac tical to require the method to be mentioned ea ch and e very time the interest rate was mentioned. Id

. Even when rea ding the

s t at ute i n the m anner reque sted by the pl aintiffs, t he court in Asset Exc hange held t h at t h e terms “per annum” and by the “y ear ” in the varia ble interest rate section of the note ref err ed to the 360-day

y ear

. Id . at ¶ 32. The appellate court also found that the plaintiffs’ claim for brea ch of contra ct was proper ly dismis s ed b ec au se the note was unambig uous and the defe ndants wer e si mply compl y i n g wi t h t he terms of t he note. Id

. at ¶¶ 37-40. Finally
, the
court held that the dismiss al of plaintiffs’ common law fra ud claim was proper beca use the plaintiffs wer e sophisticated business persons who sign ed a contra ct with terms that wer e stated cle arly

. Id . at ¶ 43. The court rea soned t hat t he plainti ffs were under a duty to know and under stand those terms bef ore the y executed the a g ree ment. Id . at ¶¶ 43- 44. ¶ 14 Although Asset Exc hange was de cided a fter the notice of a ppeal wa s filed i n this case , the fa cts are clea

rly simil ar to the fa cts in this case; thus, we f ind its reasoningparticula rly in s t ru ct i ve. Notably
, the plaintiffs in Asset Exc hange filed the same seven counts in their complaint at trial and raised almost identical issues on appea l as Hubbar d Street L ofts raised

T his cou rt not es tha t the pla int if fs in Ass et Exc hang e al le ged the same seven cou nts in the ir 3 complai nt at tr ia l tha t Hubba rd Str eet Lof ts al le ged a t t r i a l in thi s cas e, m aking the se two act ion s ext re m el y ana logous

. Ass et Exc hang e II

, LLC v. Fir

st Choi ce Bank
, 2011 I L App (1s t) 1037 18, ¶ 1.

-7-in the instant case

. Moreove r, the languag e in the promissory note in Asset Exc hange and in

the instant case is exactly the same in reg ard to the pay ment sections, and is nearly identical in the heading s and varia ble interest rate s sec t i o n s

. The only differ ence s are in the
perc entag es of inter est rate s char g ed. Be cause of these g laringsimil arities, we are inclined
to ag ree with the ruli ng s of t he cour t in Asset Exc hange . Additionally
, an analy sis of ot her state and f

eder al ca ses yield the same r esults. ¶ 15 In Bank of

America, N.A. v. Shelbourne Dev elopment Group, Inc.
, 732 F. Supp. 2d 809 (N.D. I ll. 2010)
, a fede ral district c ourt case , the parties enter ed into a loan ag ree ment. The plaintiff ul timately filed sui t to demand pay ment under the ag ree ment. Shelbourne
, 732 F. Supp. 2d at 816. The defe ndants filed counter claims alleg ing that the plaintiff violated the Intere st Act; brea ched the duty of g ood faith and fair dealing ; violated the Consumer Fr aud Act; and committed common la w fra ud. Id

. at 817. In the loan ag ree ment in tha t c ase there

was a provision that stated “a ll interest and fe es, if any
, will be computed on the basis of a 360-day y ear and the actua l number of day s elapse d.” (Interna l quotation marks omitted.) Id

. at 816. The defe ndants claimed that the plaintiff acte d dece ptively in using the 360-day y ear to calc ulate the inte re s t d espi te another provision in the l oan agr eeme nt that mandated the

use of a per annum interest rate

. Id

. The distri ct court held that althoug h the defe ndants’ claim was pree mpted by the National Ba nk Act (12 U.S.C

. § 2 8 (2006)), the claim would

never theless fail under the Intere st Act as well. Id

. at 821. The court held that the Intere st Act does not apply to corpor ations and is mere ly a g ap-f illing provision wher e no time period is stated for which interest is to be calc ulated. Id. The court ruled that a time period calc ulation method needs only

to be stated somewhe re w ithin the instrument, and bec ause the re w as a clause that stated that inte re s t will be computed based on a 360-day y ear , section 9 of the Intere st Act did not apply in that case

. Id

. ¶ 16 When a court interpre ts a st atute, the primary g oal is to ascer

tain and g ive effec t to the intent of the leg islature. Dev oney v. Retireme nt Board of the Policeme n’s Annuity & Bene fit Fund , 199 I ll. 2d 414, 424-25, 769 N.E.2d 932, 938-39 (2002). In interpre ting statutes, the
court must construe the statute as a whole and consider its parts toge ther. Fisher v. Lexington Health Care, Inc.
, 188 I ll. 2d 455, 462-63, 722 N.E.2d 1115, 1119 (1999). I llinois courts have held that section 9 of the Intere st A ct is a g ap-f illing provision a

nd only applies when

no time period for calc ulation of interest appea rs a n yw h er e i n the instrument in question. Section 10 define s the terms, namely
, the term “year, ” t h at section 9 applies when
appropr iate. There fore
, if section 9 and its terms are judge d to be g ap-f illers and inapplicable in situations such as in the instant case , as the trial court held, then it follows that the section 10 definitions are g ap-f

illers as well and would not apply in this case

. Acc ording ly
, we hold that t h e t ri al court did not err in dismiss ing Hubbar d Street L ofts’ first, third and seventh
counts. ¶ 17 I t is important to note for clar ification that both parties prese nted arguments based on a

rec ent amendment to the I ntere st Act that was enacte d afte r t he trial court m ad e i t s ruling

. On August 3, 2010, an additional section was added to the Intere st Act (815 I L CS 205/4(5) (West 2010)), which in rele vant part states “a rate or amount of i n t er es t m ay be lawfully computed when applying the ratio of the annual interest rate over a y ear based on 360 day s. T he provisions of this amendatory Act of the 96th Gene ral Assembly are declara t i v e o f

-8-exis ting law.” S ee Pub. Act 96-1421, § 5 (ef f. Aug. 3, 2010). I nl an d Ba n k ar gues t hat t his amendment proves that it is leg al to use the 365/360 me thod, a nd there fore Hubbar d Street L ofts’ Intere st Act arg

uments are moot. Hubbar d Street L ofts respond by clar ifying that they

are not challeng ing the leg ality of the 365/360 method, they are only claiming t h at their
ag re ement and the Note provide for the use of a differ ent method. Hubbar d Street L ofts contend that retroa ctive application of t he amendment to this case is unconstitutional. The provisions of the “ame ndatory Act of the 96th Gene ral Assembly are decla rative of exis ting law.” 815 I L CS 205/4( 5 ) (W es t 2010). Acc ording ly
, we adopt the position that the amendment applies retroa ctively

. Howeve r, the issue is whether the parties ag ree d to use the 365/360 calc ulation method as provided by the Note, not whether the method itself is leg al. There fore
, the amendment of the Intere st Act has no bear ing on the outcome of this case and we will not addre ss it further. ¶ 18 Hubbar d Street L ofts next argue that their brea ch of contra ct count should not have be en dismiss ed beca

use the Note is ambig uous. It is well established that if a contra ct is ambig uous, it prese nts a question of fac t and cannot b e d ec i d ed on a motion to dismiss

. Monroe Dearborn Ltd. Partnership v. Board of Education
, 271 I ll. App. 3d 457, 462, 648 N.E.2d 1055, 1058 (1995) . Howeve r, whe ther or not a contract is ambig uous is a question of law for the court to d ec i d e. Id

. Hubbar d Street L ofts argue that there are at least two

rea sonable interpr etations of t he Note’s interest ter ms and sever al possible interpre tations. They also claim that they wer e to be char g ed no more than 8.000% per cale ndar y ear beca use when “both a g ener al and a specific provision in a contra ct address the same subject, the

more specific clause controls.” Grev as v. United States Fidelity & Guaranty Co.
, 152 I ll. 2d 407, 411 (1992). Hubbard S tree t L ofts argue that the he adingand the va riable inter est rate

are the more specific clause s of the ag ree ment. L astly
, Hubbar d Street L ofts argue that if the
term “year ” is define d as 360 day s throug h the pay ment section of the Note, then it must also define the t er m “annual” and “per annum” throug hout the Note. They argue that to do so would cre ate inher ently

contra dictory

terms. ¶ 19 As discussed, in Asset Exc hange
, the court found the exact terms used in the ag ree ment in the instant case to be clea rly unambig uous. Additionally
, in RBS Citi zens, National Ass’n

v. RTG-Oak Lawn, LLC
, 407 I ll. App. 3d 183, 943 N.E.2d 198 (2011), a case which Inland Ba nk cited heavily in its argument befor e this court, the court found that a promissory note with simil ar languag e descr ibing the 365/360 method was unambiguous. In RBS
, the plaintiff filed a f orec losure suit and in response , the def endants filed c ounterc laims and aff irmative defe nses alleg ing violations of the Intere st Ac t , duty of g ood faith and fair dealing
, the Consumer Fr aud Ac t, and common law fraud. RBS
, 407 I ll. App. 3d at 184, 943 N.E.2d at 203. The plai n t i ff fi led a motion to dismiss and the trial court g rante d the motion on all aff irmative defe nses and co u n t er claims with prejudice

. Id

. The promissory note in RBS

con t ai n ed a section entitled “Intere st,” which in rele vant part stated “[i] ntere st shall be computed on the principal balanc e outstanding from tim e t o t i me, on the basis of a three hundred six ty (360) day y ear , but sha ll be char g ed for the actua l numbe r of day s within the period for which interest i s b ei n g char g ed.” (Interna l quotation marks omitted.) Id

. The appellate court found that the l anguag e in question clea rly communicated how the i ntere st

was to be calc ulated and was there fore unambig uous. Id

. at 190
, 9 4 3 N.E.2d at 206. The

-9-court also noted that the section in question was the only one th at d i s cu s sed how interest

would be calc ulated and that the term “per annum” was not mentioned in the section, there by removing the risk of confusion. Id

. The languag e in the interest section of the RBS ag ree ment is very simil ar to the la

ng uag e in the pay

ment section of the instant c ase. ¶ 20 Hubbar d Street L ofts attempt to counter this argument by pointing out that t he Note in this case contains differ ent sections that use terms like “annua l” and “per annum.” They
argue that the use of the terms in various sections of the document make the Note less clea r. Howeve r, in RBS the court found no i n d i ca t i o n that the defe ndants wer e dece ived by the
terms and noted that just beca use the defe ndants wer e unawa re of how i n t ere st would be calc ulated does not mean that the provision in question is ambig uous. Id

. In the instant case , the s pecif ic clause in question is clea rly the 365/360 method found in the pay ment section of the Note. The use of the terms “annua l” and “per annum” cannot rea sonably be said to confuse the manner in which interest will be calc ulated. There fore
, there is no ambig uity in this provision of the Note. ¶ 21 Although Hubbar d Street L ofts admit that the manner in which Inland Ba nk and the trial
court construed the Note is a rea sonable interpre tation, they argue that other interpre tations

can a pply as we ll. W e disagree . On the contr ary , we hold that the inter preta tions advance d b y Hubbar d Street L ofts are not rea sonable. For example, Hubbar d Street L ofts ar gu e

numerous complex mathematica l formulas in support of their ambiguity argument. Some of the formulas yield absurd results. Neve rtheless these arguments do not cre ate an ambig uity wher e none e x ists. ¶ 22 Inland B ank re sponds by claiming that Hubbar d Street L ofts forf eited these arguments by not raising them in the trial court. Inland Ba nk ref ers to RBS in which the defe ndants simil arly attempted to prese nt an alternative mathematica l argument that was reje cted by the appellate court. RBS
, 407 I ll. App. 3d at 188, 943 N.E.2d at 205. Fur thermore
, a “theor

y upon which a case is tried in the lower court cannot be chang ed o n revie w.” Kravis v. Smith Marine, Inc

. , 60 I ll. 2d 141, 147, 324 N.E .2d 417, 420 (1975). Hubbar d Street L ofts’ main and repe ated arg

ument in the trial court was that the Note in this case was ambig uous. Thus, they cannot now claim t hat t he Note must be int erpr eted in differ ent way s t h at were never mentioned in the trial cour t. A ccor dingly , we r ejec t those arguments and hold that the trial court did not err

in dismi ssing Hubba

rd Street L ofts’ bre ach of contra ct count. ¶ 23 L astly , Hubbar d Street L ofts argue that the c ourt err ed in dismissi ngtheir sec ond, fifth and six th counts beca

use the Note at issue was written and sig ned and the ref ore not ba rre d by the Credit Ag ree ments Act. Hubbar d Street L ofts contend that the Credit Ag ree ments Act
preve nts actions rela

ted to cre dit ag ree ments unless the ag ree ment is in writing

. They further
argue that no court has found that the Credit Ag ree ments Act bars claims related to a cre dit
agr ee m en t when it is written and signe d by both parties. The trial court rea soned that t h e Credit Ag ree ments Act was desig ned to protec t ag ainst actions wher e plaintiffs contend that they had an oral ag ree ment with the defe ndant, and that the memorialization of the contra ct does not ref

lect what they agreed to. Thus, the trial court found Hubbar d Street L ofts’ second, fifth and six th c ounts in the complaint wer e the prototy pe of claims that are barr ed by the Credit Ag ree ments Act.

-10-¶ 24 Inland Bank cites First National Bank in Staunton v. McBride C hevrole t, Inc

. , 2 6 7 I ll. App. 3d 367, 373, 642 N.E.2d 138 (1994), which states that “[t] here is no justifiable relianc e

on an o ra l cre dit agree ment as a matter of law in I llinois .” In McBride
, a bank office r promised orally to hold a chec k that cause d an overdr aft in a corpor ation’s acc ount until the Monday afte r a wee kend; howeve r, the bank office r in fac t did not hold the chec k and the
corpor ation suffe red losses. Id

. at 369-70, 643 N.E.2d at 140. The tr i al co u rt h eld that the Credit Ag ree ments Act barr ed all claims by the corpor ation beca use the ag ree ment was not in writing and the appellate court aff irmed. See g ener ally McBride
, 267 I ll. App. 3d 367, 642 N.E.2d 138. The court held that there is no limit ation on the ty pes of actions that are barr ed under the Credit Ag ree ments Act so long as they are related to a cre dit ag ree ment. Id

. at 372, 643 N.E.2d at 142. “[A]l l actions which depend for their exis tence upon an oral cre dit
ag ree ment are barr ed by the [ Credit Ag ree ments] Act.” Id

. The court further rea soned t hat
a customer

has no re course in the law if the ba nk fails to honor their or al agree ment. Id

. ¶ 25 In this case , Hubbar d Street L ofts claim that they had an agree ment with Inland Ba nk that the i ntere st rate for the loan would be calculated at 8.000% based o n the 365/ 365 method. This ag ree ment howeve r is not in writing

. What is in writing is the Note that presc ribes the 365/360 method by which to calc ulate the interest rate of the loan. Be cause Hubbar d Street L ofts cannot show in writing
, or in any other way for that matter, that they had an ag ree ment with Inland Ba

nk to apply the 8.000% interest for 365 day s, this count is barr ed by the Credit Agre ements Act. There fore
, the t rial court did not err in dismiss ing Hubbard St re et L o ft s ’ second, f ifth and six th counts. ¶ 26 Notwithstanding its rea soning reg arding the Credit Ag ree ments Act, the trial court a lso dismiss ed Hubbar d Street L ofts’ fifth count for violation of the Consumer Fr aud Act beca use Hubbar d Street L ofts wer e sophisticated business persons and not the aver ag e “consume rs” which the Consumer Fr aud Act was desig ned to protec t. The court found that Hubbar d Street L o ft s ’ s i x t h count, based on common law fra ud, failed beca

use it was not pled with specific ity

. Both these counts wer e there fore dismiss ed with prejudice beca use the trial court found that there was no amendment that would cure the defe ctive pleading

. The trial court’s

rea soning is consistent with Asset Exc hange II, LLC
, 2011 I L App (1st) 103718 (which held that a common law fra

ud claim was proper ly dismiss ed wher e plaintiffs wer e sophisticated businessmen who had a duty to know t he terms of a co n t ra ct befor e si g ning) ; Shelbourne
, 732 F. Supp. 2d 809 (which held that a C onsumer Fraud Act claim cannot be raised base d

on terms that are reve aled within the very documents that wer e s i gn ed
, an d common law fra ud claim is inapplicable wher e there was no false statement since interest was calc ulated by the method presc ribed in the loan document); RBS, 407 I ll. App. 3d 183, 943 N.E.2d 198 (which h el d t hat Consumer Fr aud Act claim was proper ly dismiss ed wher e note was unambig uous, there was no de viation from the ter ms of the note, and nothing in the rec ord of neg otiations or ag ree ments indicates dece ption). Fur thermore
, “[a] brea ch of contra ctual promise, without mor e, is not actionable under the Consumer Fr aud Act.” Ave ry v. State Farm Mutual Automobile Insurance Co.
, 216 I ll. 2d 100, 169, 835 N.E.2d 801, 844 (2005). ¶ 27 Hubbar d Street L o ft s al s o cl ai m t h at they wer e dece ived by the use of the 365/360 calc ulation method, y et offer no fac ts or evide nce that support that theory . Simi larly , there is no evidenc e that Inland Ba nk deviated from the terms of the Note or used any calc ulation

-11-method other than the 365/360 method specifie d in the pay ment section. There fore
, Hubbar d Street L ofts’ Consumer Fr aud Act and common law fra ud counts wer e proper ly dismiss ed. ¶ 28 For the fore g oing rea sons, the judgme nt of the circ uit court of Cook County is a ffirme d.

¶ 29 Affir

med.

-12-