{ "id": 4290223, "name": "ROSEMARY KEEFE, Indiv. and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. ALLIED HOME MORTGAGE CORPORATION et al., Defendants-Appellants", "name_abbreviation": "Keefe v. Allied Home Mortgage Corp.", "decision_date": "2009-07-10", "docket_number": "No. 5-07-0463", "first_page": "226", "last_page": "237", "citations": [ { "type": "official", "cite": "393 Ill. App. 3d 226" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "619 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1344" } ], "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2920688 ], "year": 1993, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0013-01" ] }, { "cite": "890 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "549" }, { "page": "549" } ], "opinion_index": 0 }, { "cite": "382 Ill. App. 3d 1189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277334 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "1198" }, { "page": "1198" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/1189-01" ] }, { "cite": "30 Cal. Rptr. 3d 76", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "year": 2005, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "36 Cal. 4th 148", "category": "reporters:state", "reporter": "Cal. 4th", "case_ids": [ 3123348 ], "year": 2005, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/cal-4th/36/0148-01" ] }, { "cite": "538 U.S. 408", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9030875 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "425", "parenthetical": "explaining that \"few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process\"" }, { "page": "605-06", "parenthetical": "explaining that \"few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process\"" }, { "page": "1524", "parenthetical": "explaining that \"few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process\"" } ], "opinion_index": 0, "case_paths": [ "/us/538/0408-01" ] }, { "cite": "9 U.S.C. \u00a7\u00a71-4", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "408 N.E.2d 403", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "410" }, { "page": "410" }, { "page": "410" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 980", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3183990 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "989" }, { "page": "989-90" }, { "page": "990" }, { "page": "989" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0980-01" ] }, { "cite": "854 N.E.2d 607", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2006, "pin_cites": [ { "page": "622" }, { "page": "622" }, { "page": "622" }, { "page": "622" } ], "opinion_index": 0 }, { "cite": "222 Ill. 2d 75", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3601923 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "99" }, { "page": "100" }, { "page": "100" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0075-01" ] }, { "cite": "822 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "37" }, { "page": "37" } ], "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 885", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3215405 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "893-94" }, { "page": "893-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0885-01" ] }, { "cite": "469 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "706" }, { "page": "706" }, { "page": "706" } ], "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563537 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "595" }, { "page": "595" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0593-01" ] }, { "cite": "641 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "864" }, { "page": "864" }, { "page": "864" }, { "page": "864" }, { "page": "864" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887289 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "909" }, { "page": "909" }, { "page": "909" }, { "page": "909" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0905-01" ] }, { "cite": "857 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 22, "year": 2006, "pin_cites": [ { "page": "264" }, { "page": "264-65" }, { "page": "264" }, { "page": "264" }, { "page": "266" }, { "page": "266" }, { "page": "266" }, { "page": "266" }, { "page": "267" }, { "page": "278", "parenthetical": "\"We do not hold that class action waivers are per se unconscionable. It is not unconscionable or even unethical for a business to attempt to limit its exposure to class arbitration or litigation, but to prefer to resolve the claims of customers or clients individually\"" }, { "page": "275" }, { "page": "275" }, { "page": "274" }, { "page": "274-75" }, { "page": "268" }, { "page": "268" }, { "page": "275" }, { "page": "268" }, { "page": "267, 271-72" }, { "page": "268" }, { "page": "267" }, { "page": "271-72" } ], "opinion_index": 0 }, { "cite": "223 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3605098 ], "weight": 22, "year": 2006, "pin_cites": [ { "page": "22" }, { "page": "22-24" }, { "page": "23" }, { "page": "22" }, { "page": "26" }, { "page": "26" }, { "page": "27" }, { "page": "27" }, { "page": "28" }, { "page": "48" }, { "page": "42" }, { "page": "42-43" }, { "page": "42" }, { "page": "42" }, { "page": "30" }, { "page": "29-30" }, { "page": "42" }, { "page": "29-30" }, { "page": "29, 36" }, { "page": "29-30" }, { "page": "28-29" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0001-01" ] }, { "cite": "835 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "119" }, { "page": "119" } ], "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5594449 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "981" }, { "page": "981" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0976-01" ] } ], "analysis": { "cardinality": 1050, "char_count": 26614, "ocr_confidence": 0.778, "pagerank": { "raw": 6.315287985788605e-08, "percentile": 0.3884917614887972 }, "sha256": "37fe8d1413a1473bef0dcc6056296c210fc0df3fc36106ef48379d2f7bf9c00e", "simhash": "1:b9b715799d66c1c0", "word_count": 4220 }, "last_updated": "2023-07-14T17:16:56.365944+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROSEMARY KEEFE, Indiv. and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. ALLIED HOME MORTGAGE CORPORATION et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE WEXSTTEN\ndelivered the opinion of the court:\nThe defendants, Allied Home Mortgage Corp. and Allied Home Mortgage Capital Corp., filed this interlocutory appeal, pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)), from the order of the circuit court of St. Clair County denying their motion to compel arbitration and stay the judicial proceedings in this class action lawsuit filed by the plaintiff, Rosemary Keefe. We reverse and remand with directions.\nBACKGROUND\nIn 1999, defendant Allied Home Mortgage Capital Corp. (Allied Capital), a mortgage broker, assisted the plaintiff and her husband, Frank Keefe, in obtaining a mortgage loan for the refinancing of their property located at 1922 South Gunderson Avenue in Berwyn, Illinois. On May 18, 1999, the plaintiff and her husband signed several documents related to their loan application, including the arbitration rider that is the subject of this appeal, which provides, in pertinent part, \u201cAll disputes, claims[,] or controversies arising from or related to the loan ***, including statutory claims, shall be resolved by binding arbitration, and not by court action, except as provided under \u2018Exclusions from Arbitration\u2019 below.\u201d The parties closed on the loan on July 23, 1999.\nOn September 2, 2004, the plaintiff filed this civil action on behalf of herself and a class consisting of all persons and entities in the United States who used the defendants as a mortgage broker and were charged third-party fees such as credit report fees, appraisal fees, recording fees, messenger/courier fees, and flood certification fees in an amount in excess of their costs to the defendants. The plaintiff alleged that, in processing loans, the defendants engaged third parties to perform certain services, paid for those services, and then charged the borrowers for those services. The plaintiff alleged that the defendants \u201cmarked up\u201d the charges (otherwise known as \u201cup charging\u201d) for the services and concealed that fact by failing to disclose to the borrowers the actual amounts paid to third parties. The plaintiff asserted claims against the defendants \u201cpremised on breach of fiduciary duty, breach of covenant of good faith and fair dealing, unjust enrichment, and consumer fraud.\u201d\nOn December 15, 2004, the defendants filed a motion to compel arbitration and stay the judicial proceedings, along with a memorandum in support thereof, based upon the arbitration rider signed by the plaintiff and her husband. On March 21, 2005, the plaintiff filed a memorandum in opposition to the defendants\u2019 motion to compel arbitration and stay the judicial proceedings, arguing that the arbitration rider is unenforceable because it is cost-prohibitive, unsupported by consideration, against public policy, and procedurally and substantively unconscionable. On April 20, 2005, the defendants filed a reply in support of their motion to compel arbitration and stay the judicial proceedings, arguing that the arbitration rider is enforceable. On April 4, 2007, the plaintiff filed a supplemental memorandum in opposition to the defendants\u2019 motion to compel arbitration and stay the judicial proceedings, and on July 5, 2007, the defendants filed a supplemental memorandum in support of their motion to compel arbitration and stay the judicial proceedings.\nOn July 10, 2007, the circuit court held a hearing on the defendants\u2019 motion to compel arbitration and stay the judicial proceedings. Following arguments of counsel, the circuit court took the matter under advisement.\nOn July 18, 2007, the circuit court entered an order denying the defendants\u2019 motion to compel arbitration and to stay the judicial proceedings, finding that the arbitration rider was illusory and procedurally and substantively unconscionable, particularly in light of the exclusion-from-arbitration section. The circuit court found that the order was appealable, pursuant to Supreme Court Rule 307(a)(1). On August 17, 2007, the defendants filed a timely notice of interlocutory appeal.\nANALYSIS\nGenerally, the standard of review for a decision on a motion to compel arbitration is whether there was a showing sufficient to sustain the circuit court\u2019s order. Hubbert v. Dell Corp., 359 Ill. App. 3d 976, 981, 835 N.E.2d 113, 119 (2005). However, where, as here, the circuit court rendered its decision without an evidentiary hearing and without findings of fact, the standard of review is de novo. Hubbert, 359 Ill. App. 3d at 981, 835 N.E.2d at 119. In addition, \u201c[t]he determination of whether a contract or a portion of a contract is unconscionable is a question of law, which we review de novo.\u201d Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d 1, 22, 857 N.E.2d 250, 264 (2006).\nWe begin our analysis by reviewing the circuit court\u2019s finding that the arbitration rider was \u201cillusory\u201d based on the exclusion-from-arbitration provision, which provides, in pertinent part, as follows:\n\u201cEXCLUSION FROM ARBITRATION. This agreement shall not limit the right of the Lender to (a) accelerate or require immediate payment in full of the secured indebtedness or exercise the other Remedies described in this Security Instrument before, during[,] or after any arbitration, including the right to foreclose against or sell the Property; [(b)] exercise the rights set forth in the Uniform Covenant labeled \u2018Protection of Lenders: Rights in the Property\u2019 contained in this Security Instrument[;] or (c) exercise *** the right under the terms of this Security Instrument to require payment in full of the Indebtedness upon a transfer of the Property or a beneficial interest therein. Should Borrower appear in and contest any judicial proceeding initiated by Lender under this Exclusion, or initiate any judicial proceeding to challenge any action authorized by this Exclusion, then upon request of Borrower such judicial proceedings shall be stayed or dismissed, and the matter shall proceed to arbitration in accordance with the section entitled \u2018Arbitration of Disputes\u2019.\u201d\n\u201cAn illusory promise appears to be a promise[ ] but on closer examination reveals that the promisor has not promised to do anything.\u201d W.E. Erickson Construction, Inc. v. Chicago Title Insurance Co., 266 Ill. App. 3d 905, 909, 641 N.E.2d 861, 864 (1994). \u201cAn illusory promise is also defined as one in which the performance is optional.\u201d W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864. An illusory promise \u201cis not sufficient consideration to support a contract.\u201d W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864.\nThe defendants\u2019 promise to arbitrate in the present case is neither empty nor optional. See W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864. Although the arbitration rider contains an exclusion-from-arbitration provision, which itemizes certain claims that are not subject to arbitration, it also provides, \u201cShould Borrower appear in and contest any judicial proceeding initiated by Lender under this Exclusion, or initiate any judicial proceeding to challenge any action authorized by this Exclusion, then upon request of Borrower such judicial proceedings shall be stayed or dismissed, and the matter shall proceed to arbitration ***.\u201d\n\u201cA contract does not lack mutuality merely because its obligations appear unequal or because every obligation or right is not met by an equivalent counterobligation or right in the other party.\u201d Piehl v. Norwegian Old Peoples\u2019 Home Society of Chicago, 127 Ill. App. 3d 593, 595, 469 N.E.2d 705, 706 (1984). \u201cThe mutuality requirement is satisfied if each party has made a promise to the other and is therefore an obligor and under a duty to the other contracting party.\u201d Piehl, 127 Ill. App. 3d at 595, 469 N.E.2d at 706. Under the express terms of the arbitration rider in the present case, the plaintiff has agreed to submit all of her claims to arbitration and may require the defendants to submit all of their claims to arbitration as well. The mutuality requirement is therefore satisfied (see Piehl, 127 Ill. App. 3d at 595, 469 N.E.2d at 706), and the defendants\u2019 promise to arbitrate is not illusory (see W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 909, 641 N.E.2d at 864).\nMoreover, where, as here, an arbitration agreement is a part of a larger agreement, the consideration for the whole agreement is sufficient to support the subsidiary arbitration agreement as well. See General Motors Acceptance Corp. v. Johnson, 354 Ill. App. 3d 885, 893-94, 822 N.E.2d 30, 37 (2004) (\u201cConsideration is \u2018 \u201cthe bargained-for exchange of promises or performances and may consist of a promise, an act[,] or a forbearance.\u201d \u2019 [Citation.] \u2018 \u201cWhile consideration is essential to the validity of a contract, mutuality of obligation is not.\u201d \u2019 [Citation.] Therefore, while a mutual promise to arbitrate is sufficient consideration to support an arbitration agreement [citation], that promise need not be equal where any other consideration for the contract, of which the agreement is part, exists [citation]\u201d). The arbitration rider in the present case expressly states that it is \u201cincorporated into\u201d the mortgage agreement and that the promise to arbitrate is made \u201c[i]n addition to the covenants and agreements made in the Security Instrument.\u201d Therefore, the arbitration rider was a part of the overall loan agreement, and the defendants\u2019 obligations under the loan agreement as a whole serve as adequate consideration for the arbitration rider. See Johnson, 354 Ill. App. 3d at 893-94, 822 N.E.2d at 37.\nWe next address the circuit court\u2019s finding that the arbitration rider was both procedurally unconscionable and substantively unconscionable. A finding of unconscionability may be based on either procedural unconscionability or substantive unconscionability or a combination of both. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 99, 854 N.E.2d 607, 622 (2006).\nAs the supreme court explained in Kinkel:\n\u201c \u2018Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it ***.\u2019 Razor, 222 Ill. 2d at 100, [854 N.E.2d at 622,] citing with approval Frank\u2019s Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 989[, 408 N.E.2d 403, 410] (1980). This analysis also takes into account the disparity of bargaining power between the drafter of the contract and the party claiming unconscionabil-Razor, 222 Ill. 2d at 100[, 854 N.E.2d at 622],\n;]< 5\u00a1< ^\nIn Razor, we cited portions of Frank\u2019s Maintenance with approval, but we did not quote at length from that opinion. We do so now:\n\u2018Procedural unconscionability consists of some impropriety during the process of forming the contract depriving a party of a meaningful choice. [Citations.] Factors to be considered are all the circumstances surrounding the transaction including the manner in which the contract was entered into, whether each party had a reasonable opportunity to understand the terms of the contract, and whether important terms were hidden in a maze of fine print; both the conspicuousness of the clause and the negotiations relating to it are important, albeit not conclusive factors in determining the issue of unconscionability. ***\u2019 Frank\u2019s Maintenance, 86 Ill. App. 3d at 989-90[, 408 N.E.2d at 410].\u201d Kinkel, 223 Ill. 2d at 22-24, 857 N.E.2d at 264-65.\nHere, the arbitration rider is not \u201c \u2018hidden in a maze of fine print\u2019 \u201d (Kinkel, 223 Ill. 2d at 23, 857 N.E.2d at 264, quoting Frank\u2019s Maintenance & Engineering, Inc., 86 Ill. App. 3d at 990, 408 N.E.2d at 410) and is not \u201c \u2018so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it\u2019 \u201d (Kinkel, 223 Ill. 2d at 22, 857 N.E.2d at 264, quoting Razor, 222 Ill. 2d at 100, 854 N.E.2d at 622, citing Frank\u2019s Maintenance & Engineering, Inc., 86 Ill. App. 3d at 989, 408 N.E.2d at 410). Instead, the arbitration rider is a separate document, which is prominently titled \u201cARBITRATION RIDER\u201d (in bold typeface in all-capital letters). In addition, the arbitration rider was signed by the plaintiff and conspicuously notified her (in bold typeface in all-capital letters) as follows:\n\u201cNOTICE: BY SIGNING THIS ARBITRATION RIDER YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT [OF] THE MATTERS DESCRIBED IN THE ARBITRATION[-] OF[-]DISPUTES SECTION ABOVE DECIDED EXCLUSIVELY BY ARBITRATION, AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT HAVE TO LITIGATE DISPUTES IN A COURT OR JURY TRIAL.\u201d\nIn Kinkel, the court discussed contracts of adhesion as follows:\n\u201cThe Cingular service agreement is a contract of adhesion. The terms, including the arbitration clause and the class action waiver therein, are nonnegotiable and presented in fine print in language that the average consumer might not fully understand. Such contracts, however, are a fact of modern life. Consumers routinely sign such agreements to obtain credit cards, rental cars, land and cellular telephone service, home furnishings and appliances, loans, and other products and services. It cannot reasonably be said that all such contracts are so procedurally unconscionable as to be unenforceable.\u201d Kinkel, 223 Ill. 2d at 26, 857 N.E.2d at 266.\nMoreover, in the present case, although there was unequal bargaining power between the contracting parties and the arbitration rider was a part of a form contract drafted by the defendants, unlike in Kinkel, the arbitration rider was not a contract of adhesion offered to the plaintiff on a take-it-or-leave-it basis. See Kinkel, 223 Ill. 2d at 26, 857 N.E.2d at 266. Instead, paragraph 8 of the arbitration rider specifically states (in bold typeface in all-capital letters) as follows:\n\u201cTHIS IS A VOLUNTARY ARBITRATION AGREEMENT. IF YOU DECLINE TO SIGN THIS ARBITRATION AGREEMENT, LENDER WILL NOT REFUSE TO COMPLETE THE LOAN TRANSACTION BECAUSE OF YOUR DECISION.\u201d\nThe plaintiff was aware of the arbitration rider and was not required to agree to arbitration to obtain the loan at issue.\nThe plaintiff also argues that the arbitration rider is procedurally unconscionable because it does not notify her of the cost of arbitration. The arbitration rider provides, in pertinent part, as follows:\n\u201cThis arbitration agreement *** shall be governed by the Federal Arbitration Act (9 U.S.C. \u00a7\u00a71-4) and the Code of Procedure of the National Arbitration Forum as in effect at the date of this agreement. Copies of rules and forms can be obtained and any claims can be filed at any National Arbitration Forum office, www.arb-forum.com, or at EO. Box 50191, Minneapolis, MN 55405.\u201d\nIn Kinkel, the court addressed a similar situation as follows:\n\u201cWe conclude that there is a degree of procedural unconscionability in the service agreement signed by plaintiff because it did not inform her that she would have to pay anything at all towards the cost of arbitration. She was merely informed that \u2018fee information\u2019 was available \u2018upon request.\u2019 This lack of information regarding the cost of arbitration is an \u2018additional fact particular to this case [which] tips the balance in plaintiffs favor\u2019 [citation], on the question of procedural unconscionability of the contract of which the class action waiver is a part. We do not find this degree of procedural unconscionability to be sufficient to render the class action waiver unenforceable, but it is a factor to be considered in combination with our findings on the question of substantive unconscionability.\u2019\u2019 Kinkel, 223 Ill. 2d at 27, 857 N.E.2d at 266.\nSimilarly, in the present case, the lack of information regarding the cost of arbitration, standing alone, is insufficient to render the arbitration provision procedurally unconscionable, but it is a factor to be considered in combination with our findings on the question of substantive unconscionability. See Kinkel, 223 Ill. 2d at 27, 857 N.E.2d at 266.\nWe turn then to the issue of substantive unconscionability. In Kinkel, the court adopted the following definition of \u201csubstantive unconscionability\u2019 \u2019:\n\u201c \u2018Substantive unconscionability concerns the actual terms of the contract and examines the relative fairness of the obligations assumed. [Citation.] Indicative of substantive unconscionability are contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.\u2019 [Citation.]\u201d Kinkel, 223 Ill. 2d at 28, 857 N.E.2d at 267.\nAs discussed above, the arbitration rider in the present case is mutually enforceable by both parties, notwithstanding the exclusion-from-arbitration provision, because that provision provides, \u201cShould Borrower appear in and contest any judicial proceeding initiated by Lender under this Exclusion, *** then upon request of Borrower such judicial proceedings shall be stayed or dismissed, and the matter shall proceed to arbitration ***.\u201d Thus, the plaintiff may require the defendants to submit all of their claims to arbitration, and there is no imbalance of obligations or rights among the parties that would render the arbitration rider substantively unconscionable.\nThe plaintiff also argues that the arbitration rider is cost-prohibitive and, thus, substantively unconscionable. The arbitration rider in the present case contains a class action waiver, which provides, \u201cAll disputes subject to arbitration under this agreement shall be arbitrated individually! ] and shall not be subjected to being joined or combined in any proceeding with any claims of any persons or class of persons other than Borrower or Lender.\u201d As the supreme court has made clear, class action waivers are not per se unconscionable in the State of Illinois. See Kinkel, 223 Ill. 2d at 48, 857 N.E.2d at 278 (\u201cWe do not hold that class action waivers are per se unconscionable. It is not unconscionable or even unethical for a business to attempt to limit its exposure to class arbitration or litigation, but to prefer to resolve the claims of customers or clients individually\u201d). \u201c[T]he enforceability of a class action waiver, whether or not the contract provides for mandatory arbitration, must be determined on a case-by-case basis, considering the totality of the circumstances.\u201d Kinkel, 223 Ill. 2d at 42, 857 N.E.2d at 275. \u201cRelevant circumstances include the fairness and balance of the contract terms, the presence of unfair surprise, and the cost of vindicating the claim relative to the amount of damages that might be awarded under the dispute resolution provisions of the contract.\u201d Kinkel, 223 Ill. 2d at 42-43, 857 N.E.2d at 275.\nIn Kinkel, the court found that, under the circumstances of that case, the class action waiver was unconscionable and unenforceable. Kinkel, 223 Ill. 2d at 42, 857 N.E.2d at 274. Those circumstances included a contract of adhesion that required the customer to arbitrate all claims but did not reveal the cost of arbitration and contained a liquidated damages clause, which allegedly operated as an illegal penalty. Kinkel, 223 Ill. 2d at 42, 857 N.E.2d at 274-75. In holding that the class waiver provision was substantively unconscionable, the Kinkel court reasoned that even if the plaintiff had prevailed at arbitration and was awarded everything she could possibly recover\u2014 the return of her $150 \u2014 it was an \u201cabsolute certainty\u201d that she would not be made whole. Kinkel, 223 Ill. 2d at 30, 857 N.E.2d at 268. The decision in Kinkel turned on the context and language of the agreement before the court: without the ability to bring a class claim, the cost to vindicate the plaintiffs $150 claim would have been the cost of arbitration ($125 in that case) plus her attorney fees. Kinkel, 223 Ill. 2d at 29-30, 857 N.E.2d at 268.\nFollowing Kinkel, we find that the prohibition on the class treatment of small consumer claims substantively unconscionable under the circumstances presented here. In addressing the \u201ccost-disparity\u201d aspect of substantive unconscionability, the supreme court in Kinkel explained that we must consider whether \u201cthe cost of vindicating the claim is so high that the plaintiffs only reasonable, cost-effective means of obtaining a complete remedy is as either the representative or a member of a class.\u201d Kinkel, 223 Ill. 2d at 42, 857 N.E.2d at 275. In making this determination, we consider the cost of bringing the claim individually compared with the damages sought. Kinkel, 223 Ill. 2d at 29-30, 857 N.E.2d at 268. We must consider the nature of the claim asserted. Kinkel, 223 Ill. 2d at 29, 36, 857 N.E.2d at 267, 271-72. Where, as here, the claim is one brought under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2006)), the average consumer will not be able to successfully arbitrate or litigate a claim without the assistance of an attorney. Thus, we must consider both the arbitration fees and the attorney fees. Kinkel, 223 Ill. 2d at 29-30, 857 N.E.2d at 268.\nThe plaintiff in this case has alleged that the defendants charged her $50 for a service that actually cost $4. This amounts to a $46 claim. As the defendants point out, however, the plaintiffs trial attorney filed an affidavit pursuant to Supreme Court Rule 222(b) (210 Ill. 2d R. 222(b)) in which he stated that the total damages sought by each class member were in excess of $50,000 but less than $75,000. When asked about this apparent discrepancy at oral arguments, the plaintiffs appellate attorney explained that she intended to seek punitive damages. The defendants argue that, because nothing in the contract or the rules of the National Arbitration Forum prohibits an arbitrator from awarding attorney fees or punitive damages, individual arbitration provides an adequate, cost-effective means of vindicating her claim.\nWe do not find this argument persuasive. Although the contract does not prohibit an award of punitive damages, there is certainly no guarantee that, assuming the plaintiff prevails on her claim for $46, she will recover punitive damages. Moreover, the amount of punitive damages that can be awarded is limited to an extent by the amount of actual damages proven. See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 425, 155 L. Ed. 2d 585, 605-06, 123 S. Ct. 1513, 1524 (2003) (explaining that \u201cfew awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process\u201d).\nFurther, as in Kinkel, the class action waiver here is contained in a contract that contains a mandatory arbitration provision but does not reveal the cost of arbitration to the claimant. Kinkel, 223 Ill. 2d at 28-29, 857 N.E.2d at 267. Under the National Arbitration Forum fee schedule, the filing fee for a claim between $50,001 and $74,999, like the plaintiff\u2019s herein, is $240. The filing fee for a claim less than $2,500, which is a closer estimate to the plaintiffs potential recovery, is $25. Add to either amount the attorney fees and the cost of obtaining necessary evidence and the cost of vindicating a claim is likely to exceed the potential recovery.\nIn addition, as the plaintiff argues, claims under the Consumer Fraud Act involve a significant investment of time and resources on the part of an attorney. Thus, without the ability to proceed as a class representative, the plaintiff may not be able to retain counsel, even assuming that the arbitrator would award her both punitive damages and attorney fees. Small consumer claims such as the plaintiffs are precisely the type of claim that class actions are designed to address. Also weighing in favor of a finding of substantive unconscionability is the nature of the injury alleged: the plaintiff alleges \u201c \u2018a scheme to deliberately cheat large numbers of consumers out of individually small sums of money.\u2019 \u201d Kinkel, 223 Ill. 2d at 36, 857 N.E.2d at 271-72, quoting Discover Bank v. Superior Court of Los Angeles, 36 Cal. 4th 148, 163, 113 E3d 1100, 1110, 30 Cal. Rptr. 3d 76, 87 (2005). We therefore conclude that the class action prohibition clause is unconscionable.\n\u201c[Wjhere a portion of an arbitration clause is found to be unconscionable, Illinois\u2019s strong policy in favor of enforcing arbitration agreements is best served by severing the unconscionable provision and enforcing the remainder of the arbitration clause.\u201d Wigginton v. Dell, Inc., 382 Ill. App. 3d 1189, 1198, 890 N.E.2d 541, 549 (2008). Here, the unenforceable prohibition on class arbitration provision is not \u201cso closely connected\u201d with the remainder of the contract that to enforce the valid provisions of the contract without it \u201cwould be tantamount to rewriting the [ajgreement\u201d (Abbott-Interfast Corp. v. Harkabus, 250 Ill. App. 3d 13, 21, 619 N.E.2d 1337, 1344 (1993)). The main goal of the arbitration clause is to choose an arbitral forum over a judicial forum. This goal can be met without the class arbitration waiver. See Wigginton, 382 Ill. App. 3d at 1198, 890 N.E.2d at 549. The prohibition on class arbitration can be severed from the remainder of the arbitration clause so that the remainder of the clause can be enforced.\nCONCLUSION\nFor the foregoing reasons, we reverse the order of the circuit court of St. Clair County denying the defendants\u2019 motion to compel arbitration and stay proceedings, and we remand the cause with directions to the circuit court to sever the prohibition-on-class-action provision but to enforce the remainder of the arbitration clause.\nReversed; cause remanded with directions.\nWELCH and CHAPMAN, JJ., concur.\nThe plaintiffs husband is now deceased and has never been a party to this litigation.\nThe plaintiff alleged that defendant Allied Home Mortgage Corp. (Allied Corp.) is a parent corporation to Allied Capital or, in the alternative, that the two companies are joint venturers with an agreement to broker and fund mortgages.\nThe National Arbitration Forum fee schedule in the record also indicates additional fees that could easily surmount the likely damages.", "type": "majority", "author": "PRESIDING JUSTICE WEXSTTEN" } ], "attorneys": [ "Russell K. Scott, Timothy Huskey, and Michelle L. Rousseau, all of Greensfelder, Hemker & Gale, EC., of Swansea, for appellants.", "Jeffrey J. Lowe and Francis J. \u201cCasey\u201d Flynn, and John Steward, of Meyerkord & Steward, LLC, both of St. Louis, Missouri, and David A. Nester, of Nester & Constance, EC., of Belleville, for appellee." ], "corrections": "", "head_matter": "ROSEMARY KEEFE, Indiv. and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. ALLIED HOME MORTGAGE CORPORATION et al., Defendants-Appellants.\nFifth District\nNo. 5 \u2014 07\u20140463\nOpinion filed July 10, 2009.\nRussell K. Scott, Timothy Huskey, and Michelle L. Rousseau, all of Greensfelder, Hemker & Gale, EC., of Swansea, for appellants.\nJeffrey J. Lowe and Francis J. \u201cCasey\u201d Flynn, and John Steward, of Meyerkord & Steward, LLC, both of St. Louis, Missouri, and David A. Nester, of Nester & Constance, EC., of Belleville, for appellee." }, "file_name": "0226-01", "first_page_order": 242, "last_page_order": 253 }