{ "id": 564648, "name": "NORTH SHORE COMMUNITY BANK AND TRUST COMPANY, Plaintiff-Appellant and Cross-Appellee, v. MARY ANN KOLLAR, Defendant-Appellee and Cross-Appellant", "name_abbreviation": "North Shore Community Bank & Trust Co. v. Kollar", "decision_date": "1999-03-31", "docket_number": "No. 1\u201498\u20142456", "first_page": "838", "last_page": "847", "citations": [ { "type": "official", "cite": "304 Ill. App. 3d 838" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "177 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317111 ], "year": 1997, "pin_cites": [ { "page": "393", "parenthetical": "the word \"shall\" in the subject statute was held to be mandatory" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0389-01" ] }, { "cite": "302 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352939 ], "year": 1999, "pin_cites": [ { "page": "843" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0839-01" ] }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "year": 1996, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "1 N.W. 441", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 3, "year": 1879, "pin_cites": [ { "page": "442" }, { "page": "442" } ], "opinion_index": 0 }, { "cite": "51 Iowa 182", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2323799 ], "weight": 3, "year": 1879, "pin_cites": [ { "page": "183" }, { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/iowa/51/0182-01" ] }, { "cite": "8 N.W. 669", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 4, "year": 1881, "pin_cites": [ { "page": "670" }, { "page": "670" }, { "page": "670" } ], "opinion_index": 0 }, { "cite": "55 Iowa 719", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2315974 ], "weight": 4, "year": 1881, "pin_cites": [ { "page": "721" }, { "page": "721" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/iowa/55/0719-01" ] }, { "cite": "200 Ill. App. 342", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5418360 ], "weight": 2, "year": 1916, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-app/200/0342-01" ] }, { "cite": "139 Ill. App. 631", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2610292 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ill-app/139/0631-01" ] }, { "cite": "281 Ill. App. 12", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3282162 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ill-app/281/0012-01" ] }, { "cite": "117 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482570 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0732-01" ] }, { "cite": "218 Ill. App. 316", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2987392 ], "year": 1920, "pin_cites": [ { "parenthetical": "a dress for the wife" } ], "opinion_index": 0, "case_paths": [ "/ill-app/218/0316-01" ] }, { "cite": "90 Ill. App. 2d 61", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2897597 ], "year": 1967, "pin_cites": [ { "parenthetical": "a wife was held liable for wearing apparel purchased by her deceased husband, where the clothing was bought for their own use and their two children" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0061-01" ] }, { "cite": "204 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577580 ], "year": 1990, "pin_cites": [ { "parenthetical": "utility bills incurred by former and estranged husbands who had separated from their wives were solely liable for the expenditures because the husbands alone benefited from them" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0001-01" ] }, { "cite": "20 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738128 ], "year": 1960, "pin_cites": [ { "page": "310", "parenthetical": "the surviving spouse is personally liable for the medical and burial expenses incurred on behalf of a husband or wife" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0301-01" ] }, { "cite": "32 Ill. 2d 345", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840596 ], "year": 1965, "pin_cites": [ { "page": "347", "parenthetical": "parents are liable for the medical and funeral expenses of their minor children" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0345-01" ] }, { "cite": "336 Ill. App. 233", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2424534 ], "weight": 3, "year": 1948, "pin_cites": [ { "page": "236", "parenthetical": "\"the term 'family expense' has not been clearly defined and *** perhaps a definition should not be attempted\"" }, { "page": "236", "parenthetical": "a fur coat for the wife constituted a family expense to hold the husband liable" }, { "page": "236", "parenthetical": "noted that the Illinois Act was copied from the Iowa statute and relied on Iowa case law" } ], "opinion_index": 0, "case_paths": [ "/ill-app/336/0233-01" ] }, { "cite": "114 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590495 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "175", "parenthetical": "\"[w]hat constitutes a 'family expense,' however, escapes precise definition\"" }, { "page": "176", "parenthetical": "\"articles of jewelry or similar items of luxury\" could possibly be considered a family expense" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0174-01" ] }, { "cite": "222 Ill. App. 3d 738", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261461 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "741" }, { "page": "741", "parenthetical": "the gas company could look to the spouse of the customer of record for payment of gas service" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0738-01" ] }, { "cite": "162 Ill. 357", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5513420 ], "weight": 3, "year": 1896, "pin_cites": [ { "page": "360" }, { "page": "360", "parenthetical": "a ring purchased by the wife was not a family expense but, rather, \"must be treated as any other ring, for mere personal gratification and adornment\"" }, { "page": "360", "parenthetical": "the Illinois family expense law was taken from a statute in Iowa" } ], "opinion_index": 0, "case_paths": [ "/ill/162/0357-01" ] }, { "cite": "334 Ill. 586", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5221721 ], "year": 1929, "pin_cites": [ { "page": "588", "parenthetical": "the child of a deceased mother who died in a work-related accident was entitled to workmen's compensation benefits" } ], "opinion_index": 0, "case_paths": [ "/ill/334/0586-01" ] }, { "cite": "39 Ill. 2d 433", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2859285 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "436", "parenthetical": "upheld the constitutionality of the Act" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0433-01" ] }, { "cite": "279 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75371 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "627" }, { "page": "627", "parenthetical": "a creditor could impose liability against noncustodial parents for expenses incurred on behalf of their children" }, { "page": "629" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0624-01" ] }, { "cite": "179 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801348 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "344" }, { "page": "341" }, { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0338-01" ] } ], "analysis": { "cardinality": 932, "char_count": 20640, "ocr_confidence": 0.771, "pagerank": { "raw": 1.4972942193078695e-07, "percentile": 0.6641062857332609 }, "sha256": "fcca26f7e05342230c7fb06fdb31ab67d2956c9568eb1e9401fe0087ffece905", "simhash": "1:27fa9606887cf50b", "word_count": 3488 }, "last_updated": "2023-07-14T16:20:24.702805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORTH SHORE COMMUNITY BANK AND TRUST COMPANY, Plaintiff-Appellant and Cross-Appellee, v. MARY ANN KOLLAR, Defendant-Appellee and Cross-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nPlaintiff North Shore Community Bank and Trust Company (Bank) appeals the dismissal of its one-count complaint, alleging a cause of action pursuant to section 15(a)(1) of the Illinois Rights of Married Persons Act (commonly referred to as the Family Expense Act) (Act) (750 ILCS 65/15(a)(1) (West 1996)) against defendant Mary Ann Kollar for an unpaid promissory note executed by her husband only.\nAlthough the Act was passed in 1874, this appeal raises an issue of first impression as to whether a promissory note falls within the term \u201cfamily expense\u201d under the Act. We find that borrowed money obtained from a bank and secured by a promissory note does not constitute a family expense and, therefore, one spouse cannot be held responsible for the default of the payment of the note executed by the other spouse under the Act. Thus, we affirm the dismissal of the complaint.\nOn cross-appeal, defendant asserts that the trial court erred in denying her request for an award of costs, expenses and attorney fees under section 15(a)(3) of the Act (750 ILCS 65/15(a)(3) (West 1996)). We find that the language of section 15(a)(3) is mandatory, not discretionary. Accordingly, we reverse the trial court\u2019s order denying such award and remand the matter for a determination of an appropriate amount.\nIn its one-count complaint, the Bank alleged that defendant was the wife of Robert Jeffs Kollar (Robert), who died on April 19, 1997. Prior to his death, Robert had executed a promissory note in the amount of $150,000 with the Bank in December 1995, due in 90 days. The note, which was attached to the complaint, revealed that it and its three subsequent renewals were signed only by Robert and the collateral for the note was 152,500 shares of stock in.BioSolutions, Inc. In 1996, the Bank renewed the note on three consecutive occasions, i.e., March 18, September 18, and December 18. The last renewal was due on April 18, 1997. On April 19, 1997, Robert died, leaving a balance due of $148,777.19.\nThe Bank alleged that in December 1995, Robert \u201crepresented and warranted to\u201d the Bank that the money was \u201cto be used for payment of family tax obligations\u201d and the Bank\u2019s purpose \u201cin making the loan to Robert was to facilitate his payment of family tax obligations.\u201d The Bank further alleged that Robert had deposited the money into his personal checking account and, with defendant, disbursed the entire sum of the loan. In paragraph 16 the Bank specifically alleged that the proceeds from the Bank\u2019s loan \u201cto Robert were, upon information and belief, drawn against and disbursed upon the written directions of Robert and Mary Ann, and were used for family expenses.\u201d The Bank listed family expenses as including \u201cpayment of taxes, acquisition and maintenance of shelter, home improvement, transportation, medical insurance, food and beverages, travel, legal fees, residential utilities, personal financial services, security services, magazine subscriptions, club expenses, safe deposit box rental, interest and principal payments on personal loans, clothing, support and education of themselves and their [three minor] children.\u201d Based on these allegations, the Bank claimed that it was a creditor entitled to recovery of the sums due it from defendant under section 15(a)(1) of the Act.\nIn response, defendant filed a section 2\u2014615 motion to dismiss (735 ILCS 5/2\u2014615 (West 1996)), alleging that the complaint was substantially insufficient at law. Defendant contended that the Bank, as a mere lender of money, is not entitled to pursue a cause of action under the Act because the Bank merely seeks repayment of a loan, not payment for goods and articles provided to the family. Defendant further stated that the loan was provided by a promissory note executed by Robert only and the Bank\u2019s right of recovery for the debt owed by him rests against Robert\u2019s estate, not defendant individually.\nFollowing a hearing on June 19, 1998, the trial court granted defendant\u2019s motion to dismiss with prejudice. In addition, the order denied \u201cdefendant\u2019s oral motion for the recovery of costs, expenses and attorney\u2019s fees incurred in defending the action, brought in accordance with 750 ILCS 65/15(a)(3).\u201d\nThereafter, the Bank filed a notice of appeal, seeking reversal of the dismissal of its complaint and a finding that it has stated a good cause of action under section 15(a)(1) of the Act. In addition, defendant. filed a notice of cross-appeal, seeking a reversal of the denial of costs, expenses and attorney fees and remandment to the trial court for a determination of the amount of costs, expenses and attorney fees to be awarded defendant.\nWe review de novo the dismissal of a complaint under section 2\u2014615. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997). We must take as true all well-pled allegations of fact contained in the complaint and construe all reasonable inferences therefrom in favor of the plaintiff. Vernon, 179 Ill. 2d at 341. A section 2\u2014615 motion attacks the legal sufficiency of a complaint, and our inquiry under these circumstances is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Vernon, 179 Ill. 2d at 344.\nAs a threshold matter, we reject defendant\u2019s contention that the complaint is deficient on its face, arguing that it contains allegations unsupported by any facts. From our review of the complaint, we find that the allegations are adequately pled for the purpose of a section 2\u2014615 motion. Proof of the factual allegations would be a matter for discovery.\nOn the direct appeal, the Bank asserts that section 15(a)(1) of the Act entitles a bank to recover from one spouse money borrowed by the other spouse where the money was alleged to have been used for family expenditures. The Bank argues for such a result based on the history, text and purpose of the statute. The Bank further maintains that current society, as distinguished from the world of 100 years ago, requires a more expansive interpretation of the Act.\nDefendant contends that the Act does not allow a bank to recover on a failed loan from the spouse of the borrower where the spouse was not a party to the loan. Defendant argues that (1) the Act does not apply to the Bank\u2019s loan agreement with Robert; (2) borrowed money is not an item for which recovery is contemplated by the Act; and (3) the Bank\u2019s sole remedy exists under the terms of the promissory note.\nSection 15(a)(1) of the Act provides that \u201c[t]he expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly and separately.\u201d 750 ILCS 65/15(a)(1) (West 1996). The identical language now codified at section 15(a)(1) has existed since the Act was enacted in 1874.\nThe purpose of the Act is to protect creditors. Proctor Hospital v. Taylor, 279 Ill. App. 3d 624, 627 (1996). The court in Proctor Hospital reasoned that \u201cby making the husband and wife jointly liable for all family expenses, regardless of which spouse incurs the expense, the Expense Statute expanded the remedies available to creditors. [Citation.] Thus, we must assume that the purpose of this statute is to protect creditors.\u201d Proctor Hospital, 279 Ill. App. 3d at 627 (a creditor could impose liability against noncustodial parents for expenses incurred on behalf of their children).\nThe Illinois Supreme Court has defined family expenses as \u201cexpenses for articles which conduce in a substantial manner to the welfare of the family generally and tend to maintain its integrity.\u201d Carson Pirie Scott & Co. v. Hyde, 39 Ill. 2d 433, 436 (1968) (upheld the constitutionality of the Act). All necessaries are included as family expenses \u201ceven though used exclusively by individual members of the family.\u201d Purity Baking Co. v. Industrial Comm\u2019n, 334 Ill. 586, 588 (1929) (the child of a deceased mother who died in a work-related accident was entitled to workmen\u2019s compensation benefits). In contrast, a family expense \u201cdoes not include business expenses, which are incurred merely to secure the means to maintain the family, nor private or individual expenses, which do not affect the collective body of persons under one head constituting a household or family.\u201d Hyman v. Harding, 162 Ill. 357, 360 (1896). More recently, this court, relying on the supreme court opinion in Hyde, defined a family expense \u201cas one which contributes to the welfare of the family and benefits or maintains its integrity.\u201d Peoples Gas Light & Coke Co. v. Illinois Commerce Comm\u2019n, 222 Ill. App. 3d 738, 741 (1991).\nCourts have also recognized that the term \u201cfamily expense\u201d has not been, and perhaps cannot be, clearly defined. White v. Neeland, 114 Ill. App. 3d 174, 175 (1983) (\u201c[w]hat constitutes a \u2018family expense,\u2019 however, escapes precise definition\u201d); Louis Berman & Co. v. Dahlberg, 336 Ill. App. 233, 236 (1948) (\u201cthe term \u2018family expense\u2019 has not been clearly defined and *** perhaps a definition should not be attempted\u201d). Notwithstanding the absence of a precise definition for the term \u201cfamily expense,\u201d the nature and character of expenses that have been judicially considered to constitute a family expense for purposes of the Act are instructive.\nFor purposes of the Act, expenses for the following goods and services have been found to be family expenses: (1) hospital, medical and funeral expenses of a spouse or child (Graul v. Adrian, 32 Ill. 2d 345, 347 (1965) (parents are liable for the medical and funeral expenses of their minor children); Saunders v. Schultz, 20 Ill. 2d 301, 310 (1960) (the surviving spouse is personally liable for the medical and burial expenses incurred on behalf of a husband or wife)); (2) utility bills (Peoples Gas Light & Coke Co., 222 Ill. App. 3d at 741 (the gas company could look to the spouse of the customer of record for payment of gas service); cf. Central Illinois Light Co. v. Illinois Commerce Comm\u2019n, 204 Ill. App. 3d 1 (1990) (utility bills incurred by former and estranged husbands who had separated from their wives were solely liable for the expenditures because the husbands alone benefited from them)); (3) clothing and wearing apparel expenses (Pope v. Kaleta, 90 Ill. App. 2d 61 (1967) (a wife was held liable for wearing apparel purchased by her deceased husband, where the clothing was bought for their own use and their two children); Louis Berman, 336 Ill. App. at 236 (a fur coat for the wife constituted a family expense to hold the husband liable); Whitney, Inc. v. Mandel, 218 Ill. App. 316 (1920) (a dress for the wife)); (4) some jewelry White, 114 Ill. App. 3d at 176 (\u201carticles of jewelry or similar items of luxury\u201d could possibly be considered a family expense); cf. Hyman, 162 Ill. at 360 (a ring purchased by the wife was not a family expense but, rather, \u201cmust be treated as any other ring, for mere personal gratification and adornment\u201d)); (5) carpeting for the house (Lyman v. Harbaugh, 117 Ill. App. 3d 732 (1983)); (6) rent of family apartment Weinstein v. Morris, 281 Ill. App. 12 (1935)); and (7) wages of a domestic servant (Campbell v. Heuer, 139 Ill. App. 631 (1908)).\nIn contrast, borrowed money has never been held to constitute a family expense and, in fact, three cases, albeit dated, have so held. Laughlin v. Dalton, 200 Ill. App. 342 (1916); Davis v. Ritchey, 55 Iowa 719, 8 N.W. 669 (1881); Sherman v. King, 51 Iowa 182, 1 N.W. 441 (1879). Even though appellate court decisions issued before 1935 have no binding authority (Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 95 (1996)), we view these decisions as persuasive. Moreover, Iowa decisions have long been considered by Illinois courts for the purpose of the Act because the Illinois Act was taken from the Iowa statute. Carson Pirie Scott, 39 Ill. 2d 433 (relied on Iowa case law); Hyman, 162 Ill. at 360 (the Illinois family expense law was taken from a statute in Iowa); Louis Berman, 336 Ill. App. at 236 (noted that the Illinois Act was copied from the Iowa statute and relied on Iowa case law).\nIn Laughlin, the plaintiff had loaned $100 to her sister, the wife of the defendant. After the death of her sister and the defendant\u2019s failure to repay the loan, plaintiff sued the defendant to recover the debt. At trial the evidence showed that the money was used to pay a butcher\u2019s bill. In response to plaintiffs argument that the Act applied to make the defendant liable on the loan, the court found the loan \u201cstill remains the debt of the party borrowing the money [the sister] and not of the party whose debt was paid [the defendant]. And whatever the law may be as to the liability of a husband for money loaned his wife to purchase necessaries or to purchase articles for family use, we see no right of recovery here.\u201d Laughlin, 200 Ill. App. at 346.\nIn Davis, the Iowa Supreme Court specifically held that borrowed money does not constitute a family expense. Davis, 55 Iowa at 721, 8 N.W. at 670. In Davis, the defendant\u2019s deceased husband borrowed money from the plaintiff and executed a note for the loan. After defendant\u2019s husband died, the plaintiff sued defendant to recover on the note. After conceding that the money borrowed by the defendant\u2019s deceased husband was used for family expenses, the Iowa Supreme Court still rejected the plaintiff\u2019s cause of action and held that \u201c[t]he question, then, is whether borrowed money can be regarded as a family expense, if borrowed for and used in obtaining things which, if obtained on credit, would be an expenditure for the family. We think not.\u201d Davis, 55 Iowa at 721, 8 N.W at 670. The Bank in the present case acknowledged that the Davis case is virtually indistinguishable but argues that it was wrongly decided.\nIn Sherman, defendants W.W. King and Julia King were husband and wife. W.W. King executed a promissory note to the plaintiff for money paid by plaintiff at W.W. King\u2019s orders for \u201ccertain indebtedness which had been incurred for the defendant\u2019s family expenses.\u201d Sherman, 51 Iowa at 183, 1 N.W. at 442. In his cause of action, the plaintiff relied on the statute that makes family expenses chargeable upon the property of both the wife and husband. The Iowa court held that the plaintiff had no right of action against the wife, Julia King. Sherman, 51 Iowa at 183, 1 N.W. at 442.\nThese three cases (Laughlin, Davis and Sherman) recognize that cash is fungible, in contrast to specific goods, articles and services. We find these three opinions persuasive and hold that the Bank in the present case cannot seek recovery from defendant on a failed promissory note that was executed by her husband alone and was secured by shares of stock. To hold otherwise would open up every loan to minute dissection, tracing every dollar to its ultimate use. Such dissective analysis of a promissory note for cash only does not accord with the prior use or intention of the Act.\nCredit card expenditures would seem to present a closer case based on the more immediate nexus between the item purchased and the debt incurred. More than a century ago, in 1879, the Davis court acknowledged that obtaining items considered family expenses on credit would be an expenditure for the family and, thus, fall within the family expense statute. Davis, 55 Iowa at 721, 8 N.W. at 670. In 1999, although in a case not involving the Act, this court recently recognized that credit card debt may be a family expense for purposes of the Act, depending on the nature of those debts. Doe v. TCF Bank Illinois, FSB, 302 Ill. App. 3d 839, 843 (1999) (in a case involving a husband\u2019s complaint for invasion of privacy, the court observed that \u201cplaintiff\u2019s spouse has a \u2018natural and proper interest\u2019 in knowing about plaintiffs credit card debt because, depending on the nature of those debts, she is potentially liable therefor,\u201d citing the Act).\nThe case before us today, however, involves a promissory note and matters concerning credit card debt must be left for another day. While the Bank ably observes the changes over the course of 125 years in the way people transact purchases and payments, whether it be the 1880s, the current century, or the new millennium, there is nothing new about the debt incurred by a person who executes a promissory note with a bank.\nOn cross-appeal, defendant asserts that the trial court erred in denying her attorney fees pursuant to section 15(a)(3) of the Act:\n\u201cAny creditor who maintains an action in violation of this subsection (a) for an expense other than a family expense against a spouse or former spouse other than the spouse or former spouse who incurred the expense, shall be liable to the other spouse or former spouse for his or her costs, expenses and attorney\u2019s fees incurred in defending the action.\u201d (Emphasis added.) 750 ILCS 65/15(a)(3) (West 1996).\nAs an initial matter in the cross-appeal, the Bank asserts that this court should not consider defendant\u2019s cross-appeal, arguing that defendant failed to preserve a record sufficient to permit appellate review. The Bank complains that defendant failed to provide a petition or motion for fees, a hearing transcript or any substituted report of proceedings. The Bank argues that \u201c[i]n the absence of a record, there is no legal reason for this court to consider [defendant\u2019s] issue at all.\u201d\nThe \u201clegal reason\u201d to consider defendant\u2019s cross-appeal is, quite simply, the express language of the order on appeal: \u201cDefendant\u2019s oral motion for recovery of costs, expenses and attorney\u2019s fees incurred in defending the action, brought in accordance with 750 ILCS 65/15(a)(3), is denied.\u201d The Bank offers no authority for denying review of a trial court order based on the absence of a hearing transcript, which is not a particularly unusual situation in the appellate court, or based on the premise that the order derived from an oral, not written, motion. We find the Bank\u2019s contention to be without merit.\nRegarding the substance of the cross-appeal, the Bank contends that the fee-shifting provision in the Act is directory, not mandatory, and, thus, the trial court could exercise its discretion on whether to invoke the provision. We disagree.\n\u201cWhether a statutory provision is mandatory or merely directory depends upon the intent of its drafters. *** Legislative use of the word \u2018may\u2019 is generally regarded as indicating a permissive or directory reading, whereas use of the word \u2018shall\u2019 is generally considered to. express a mandatory reading.\u201d People v. Reed, 177 Ill. 2d 389, 393 (1997) (the word \u201cshall\u201d in the subject statute was held to be mandatory). Although the Bank provides a litany of cases that fall within the exception to the general rule announced in Reed, none of the cases addressed whether an attorney fees provision could be discretionary even though it contained the word \u201cshall.\u201d\nThe only case that mentions the attorney fees provision in the Act viewed the award of fees as mandatory. Proctor Hospital, 279 Ill. App. 3d at 629. In Proctor Hospital, the plaintiff hospital rendered medical services to the defendant\u2019s daughter and then sued the defendant, based on the Act, to recover its medical costs. The court in Proctor Hospital held that the medical expenses of a minor child, but not an emancipated child, are family expenses under the Act. The court remanded the case for the trial court to decide whether the child was a minor or emancipated at the time she received the services from the plaintiff hospital. The court expressly held, however, that if the child was found to have been emancipated at the time the medical services were provided, then the plaintiff hospital would be liable for the defendant\u2019s attorney fees. Proctor Hospital, 279 Ill. App. 3d at 629.\nWe find that the attorney fees provision in section 15(a)(3) is mandatory based on the language in the Act and the finding in Proctor Hospital. Accordingly, we reverse the denial of fees for defendant and remand for a determination of the proper amount.\nAffirmed in part and reversed in part; cause remanded.\nHOURIHANE, RJ., and THEIS, J., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Thomas F. Tobin, Eugene S. Kraus, and Mary Lisa Kamins, all of Con-nelly & Schroeder, of Chicago, for appellee.", "David J. Letvin and David M. Stein, both of Letvin & Stein, of Chicago, for appellant." ], "corrections": "", "head_matter": "NORTH SHORE COMMUNITY BANK AND TRUST COMPANY, Plaintiff-Appellant and Cross-Appellee, v. MARY ANN KOLLAR, Defendant-Appellee and Cross-Appellant.\nFirst District (5th Division)\nNo. 1\u201498\u20142456\nOpinion filed March 31, 1999.\nThomas F. Tobin, Eugene S. Kraus, and Mary Lisa Kamins, all of Con-nelly & Schroeder, of Chicago, for appellee.\nDavid J. Letvin and David M. Stein, both of Letvin & Stein, of Chicago, for appellant." }, "file_name": "0838-01", "first_page_order": 856, "last_page_order": 865 }