{ "id": 2666578, "name": "THOMAS TYRCHA, Plaintiff-Appellee, v. JAMES WESOLEK, Defendant-Appellant", "name_abbreviation": "Tyrcha v. Wesolek", "decision_date": "1989-08-09", "docket_number": "No. 1\u201488\u20142648", "first_page": "354", "last_page": "358", "citations": [ { "type": "official", "cite": "187 Ill. App. 3d 354" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "444 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5439714 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0953-01" ] }, { "cite": "111 Ill. 634", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 828342 ], "year": 1983, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill/111/0634-01" ] }, { "cite": "251 Ill. App. 414", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5588029 ], "year": 1884, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ill-app/251/0414-01" ] }, { "cite": "505 N.E.2d 1378", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3608901 ], "weight": 3, "pin_cites": [ { "page": "603" }, { "page": "603-04" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0601-01" ] }, { "cite": "84 N.E. 884", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1987, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "234 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5641595 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "229-30" }, { "page": "229-30" } ], "opinion_index": 0, "case_paths": [ "/ill/234/0215-01" ] }, { "cite": "348 N.E.2d 196", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2801587 ], "weight": 3, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0591-01" ] }, { "cite": "396 N.E.2d 92", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 554", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3292695 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0554-01" ] } ], "analysis": { "cardinality": 414, "char_count": 7175, "ocr_confidence": 0.766, "pagerank": { "raw": 6.580250337812053e-08, "percentile": 0.40286093899682957 }, "sha256": "0e702a0103241bc2343c81323b16f9f23e4ac90ae5060aafa73d62c03db659e6", "simhash": "1:0fe658162acff4d9", "word_count": 1207 }, "last_updated": "2023-07-14T19:20:22.173562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS TYRCHA, Plaintiff-Appellee, v. JAMES WESOLEK, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE FREEMAN\ndelivered the opinion of the court:\nDefendant, James Wesolek, appeals from an order of the trial court which granted summary judgment in favor of plaintiff, Thomas Tyrcha, on the affirmative defense of usury in an action to recover on an installment note in connection with the parties\u2019 agreement for the sale and purchase of stock. On appeal defendant asserts that the trial court improperly found that \u201cAn Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money\u201d (the Interest Act or Act) (Ill. Rev. Stat. 1983, ch. 17, par. 6401 et seq.) does not apply to contracts for the sale and purchase of property where a note is given to secure the balance of the purchase price.\nFor the reasons stated below, we affirm the judgment of the circuit court.\nPlaintiff\u2019s complaint sought to recover a judgment against defendant in the amount of $116,124.37 for the balance due, plus interest and attorney fees, on the installment note. The stock purchase agreement, executed on October 24, 1984, provided that plaintiff, the seller and owner of all of the capital stock of A.A.A. Board-Up Service, Inc., agreed to sell, and defendant agreed to purchase, 490 of the company\u2019s 1,000 common shares. Defendant agreed to pay $35,000 at the closing of the transaction and the balance of $114,000 at the interest rate of 10% per annum in equal monthly payments.\nA judgment by confession was entered. Defendant then filed an answer to the complaint, admitting he executed and delivered the note, but denying the amount due to plaintiff and raising as affirmative defenses usury and fraud. The usury defense, pertinent to the instant appeal, asserts that the installment note violates the Interest Act in that the note requires defendant to pay interest at the rate of 10% per annum, while the Act provides a lawful maximum interest rate of 9% per annum. Defendant asserts that since the note is usurious, he is entitled to recover, pursuant to the Act, twice the amount of interest due under the note, or $133,519.20, plus costs and attorney fees.\nIn addition to his answer, defendant also filed a motion to open the judgment by confession and an affidavit. The court ordered that the judgment by confession be opened and set aside and granted defendant leave to demand a trial by jury. Plaintiff filed a reply to defendant\u2019s affirmative defenses, asserting, among other things, that defendant waived any claim of usury. Subsequently, plaintiff filed a motion for summary judgment on the usury affirmative defense, with affidavits of plaintiff and Milton C. Jacobson, plaintiff\u2019s counsel, attached. Plaintiff asserted that the parties\u2019 transaction was a purchase of property and not a loan of money, so that the Interest Act does not apply. After a hearing, the trial court granted plaintiff\u2019s motion for summary judgment on the affirmative defense of usury.\nOn appeal defendant contends that the trial court improperly found that the Interest Act does not apply to the parties\u2019 transaction. Defendant asserts that the language of the Act indicates that the statute applies not only to loan transactions, but also to credit transactions where interest is charged. Defendant points to the language in the preamble of the Act, that the Act relates to \u201csales on credit.\u201d Further, defendant refers to language in sections 4 and 8 of the Act (Ill. Rev. Stat. 1983, ch. 17, pars. 6404, 6416), where the Act provides for a maximum rate of interest to be lawfully contracted for in written agreements generally. Defendant also asserts that the statute fails specifically to exclude contracts for the sale and purchase of property. Further, defendant cites Huss v. Maras (1979), 77 Ill. App. 3d 554, 396 N.E.2d 92, and Hall v. Montaleone (1976), 38 Ill. App. 3d 591, 348 N.E.2d 196, for the proposition that an installment note contract to purchase real estate, where no money was loaned or changed hands, comes under the purview of the Act.\nWe find that defendant\u2019s argument must fail. The remedy for a usurious note is set forth in section 6 of the Act, which provides in pertinent part:\n\u201cIf any person or corporation knowingly contracts for or receives, directly or indirectly, by any device, subterfuge or other means, unlawful interest, discount or charges for or in connection with any loan of money, the obligor may, [sic] recover by means of an action or defense an amount equal to twice the total of all interest, discount and charges determined by the loan contract or paid by the obligor, whichever is greater, plus such reasonable attorney\u2019s fees and court costs as may be assessed by a court against the lender.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 17, par. 6413.)\nUsury is an illegal profit required and received by a lender of a sum of money from the borrower. (Clemens v. Crane (1908), 234 Ill. 215, 229-30, 84 N.E. 884, 889; McComb v. McWilliams (1987), 153 Ill. App. 3d 601, 603, 505 N.E.2d 1378.) Clemens provides the following essential elements of usury: (1) a loan or forbearance; (2) the loan must be of money or something circulating as money; (3) the loan must be repayable absolutely; and (4) something in addition to lawful interest must be exacted. (Clemens, 234 Ill. at 229-30.) Thus, there can be no usury where there is \u201cin no sense a loaning of money\u201d between the parties. (McComb, 153 Ill. App. 3d at 603-04, citing Manufacturers Finance Trust v. Stone (1929), 251 Ill. App. 414, 420.) The purchase and sale of property is not a loan. McComb, 153 Ill. App. 3d at 604, citing Fames v. Hardin (1884), 111 Ill. 634, 645; see also First National Bank v. Larkins (1983), 111 Ill. App. 3d 953, 444 N.E.2d 818.\nIn the instant case, defendant\u2019s obligation to plaintiff resulted from his purchase of stock from plaintiff. Plaintiff did not loan defendant money. The parties\u2019 transaction therefore fails to meet the elements of usury and the Interest Act does not apply. The cases defendant cites to support application of the Act are distinguishable from the instant case. In Huss v. Maras (1979), 77 Ill. App. 3d 554, 396 N.E.2d 92, the court considered whether purchase money due under a real estate installment contract came within the \u201cbusiness loan\u201d exception to the Interest Act, an issue not argued by the parties to the instant case on the motion for summary judgment. In Hall v. Montaleone (1976), 38 Ill. App. 3d 591, 348 N.E.2d 196, the court held that a lender could not use the Act to claim that a contract for the sale of real estate was usurious. Rather, the statute was enacted to protect the buyer from usurious contracts. (Hall, 38 Ill. App. 3d at 593.) In the instant case, unlike Hall, the lender is not attempting improperly to take advantage of his own wrong.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nJudgment affirmed.\nWHITE and CERDA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE FREEMAN" } ], "attorneys": [ "James J. Jorgensen, of Chicago, for appellant.", "Gordon & Glickson, P.C., of Chicago (Alan R. Borlack, of counsel), for appellee." ], "corrections": "", "head_matter": "THOMAS TYRCHA, Plaintiff-Appellee, v. JAMES WESOLEK, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201488\u20142648\nOpinion filed August 9, 1989.\nJames J. Jorgensen, of Chicago, for appellant.\nGordon & Glickson, P.C., of Chicago (Alan R. Borlack, of counsel), for appellee." }, "file_name": "0354-01", "first_page_order": 380, "last_page_order": 384 }