                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-4129
MICHAEL RIZZO AND LOUISE RIZZO,
                                            Plaintiffs-Appellants,
                                 v.


PIERCE & ASSOCIATES,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 02 C 1992—Charles R. Norgle, Sr., Judge.
                          ____________
 ARGUED NOVEMBER 5, 2003—DECIDED DECEMBER 12, 2003
                    ____________



  Before FLAUM, Chief Judge, and BAUER and WILLIAMS,
Circuit Judges.
  BAUER, Circuit Judge. The plaintiffs brought this action
under the Fair Debt Collections Practices Act (FDCPA)
claiming that defendant unlawfully charged post-accel-
eration, pre-reinstatement late fees on a mortgage loan
because the mortgage and note did not unambiguously au-
thorize the late fees. We find the collection of those late fees
to be lawful and affirm the district court’s grant of sum-
mary judgment in favor of defendant.
2                                                  No. 02-4129

                        BACKGROUND
   Plaintiffs, Michael and Louise Rizzo, obtained a home
mortgage loan and signed a promissory note on the mort-
gage. Some time after signing both of these documents, the
Rizzos failed to make their required monthly payments. The
loan was accelerated and an action for foreclosure was
ultimately filed. Plaintiffs invoked their right under the
mortgage to reinstate. They paid all of the fees and ex-
penses necessary to reinstate their loan. The action to fore-
close was dismissed. Plaintiffs then requested an account
history. When they received the account history, they
discovered that they had paid a late charge on the post-
acceleration to pre-reinstatement period. The plaintiffs then
filed this action in order to obtain what they call “unlawful
post-acceleration late charges.” Defendant’s motion for
summary judgment was granted and the plaintiffs’ motion
was denied. Plaintiffs filed this appeal.
The relevant portions of the note are as follows:
    3.) Payments
    I will pay principal and interest by making payments
    each month of U.S. $674.88 . . . .
    4) Borrower’s Failure to Pay as Required
          (A) Late Charges for Overdue Payments
          If the Note Holder has not received the full amount
          of any of my monthly payments by the end of fifteen
          calender days after the date it is due, I will pay a
          late charge to the Note Holder. The amount of the
          charge will be 5.0% of my overdue payment . . .
    ...
          (C) Default
          If I do not pay the overdue amount by the date
          stated in the notice described in (B) above, I will be
          in default. If I am in default, the Note Holder may
No. 02-4129                                                  3

       require me to pay immediately the full amount of
       principal which has not been paid and all the in-
       terest that I owe on that amount
       ....
       (D) Payment of Note Holder’s Cost and Expenses
       If the Note Holder has required me to pay imme-
       diately in full as described above, the Note Holder
       will have the right to be paid back for all of its costs
       and expenses to the extent not prohibited by appli-
       cable law. Those expenses include, for example,
       reasonable attorney’s fees.
(R. on Appeal at 18.) The relevant portions of the Mortgage
are as follows:
   17.) Acceleration, Remedies:
   . . . Lender, at Lender’s option, may declare all of the
   sums secured by this Mortgage to be immediately due
   and payable without further demand and may foreclose
   this Mortgage by judicial proceeding. Lender shall be
   entitled to collect in such proceeding all expenses of
   foreclosure, including, but not limited to, reasonable
   attorneys’ fees and costs of documentary evidence,
   abstracts and title reports.
   18.) Borrower’s Right to Reinstate
   Notwithstanding Lender’s acceleration of the sums
   secured by this Mortgage due to Borrower’s breach,
   Borrower shall have the right to have any proceedings
   begun by Lender to enforce this Mortgage discontinued
   at any time prior to entry of a judgement enforcing this
   Mortgage if: (a) Borrower pays Lender all sums which
   would be then due under this Mortgage and the Note
   had no acceleration occurred; (b) Borrower cures all
   breaches of any other covenants or agreements of
4                                                  No. 02-4129

    Borrower contained in this Mortgage. . . .
(R. on Appeal at 18.)


                        DISCUSSION
  This court reviews a district court’s ruling on a motion for
summary judgment de novo. Weinberger v. State of Wiscon-
sin, 105 F.3d 1182, 1186 (7th Cir. 1997). Summary judg-
ment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law. Id. Interpretation of an unambiguous
contract is a question of law. Bechtold v. Physicians Health
Plan of N. Ind., Inc., 19 F.3d 322, 325 (7th Cir. 1994) (citing
Ryan v. Chromalloy Am. Corp., 877 F.2d 598, 602 (7th Cir.
1989)). “A term is ambiguous if it is subject to reasonable
alternative interpretations.” Hickey v. Staley Mfg., 995 F.2d
1385, 1389 (7th Cir. 1993) (quoting Taylor v. Continental
Group, 933 F.2d 1227, 1232 (3d Cir. 1991)). Therefore, “if
the language of the contract unambiguously provides the
answer to the question at hand, the inquiry is over.”
LaSalle Nat’l Bank v. Service Merchandise Co., 827 F.2d 74,
78 (7th Cir. 1987).
  Plaintiff cites to sixteen cases in an attempt to support
his position that post-acceleration late fees are unlawful.1


1
   1) Berkley Federal v. Ogalin, 708 A.2d 620 (Conn. App. Ct.,
1998); 2) Cadle Co. v. Ginsburg, 1997 WL 535249 (Conn. Super.
Ct., 1997); 3) Centerbank v. D’Assaro, 600 N.Y.S.2d 1015 (N.Y.
Sup. Ct., 1993); 4) Crest S. & L. Ass’n v. Mason, 581 A.2d 120
(N.J. Super. Ct. Ch. Div., 1990); 5) FDIC v. M.F.P. Realty Ass’n,
870 F. Supp. 451 (D. Conn., 1994); 6) FDIC v. Napert-Boyer
Partnership, 671 A.2d 1303 (Conn. App. Ct., 1996); 7) FNMA
v. Mebane, 618 N.Y.S.2d 88 (N.Y. App. Div. 2d Dept., 1994); 8)
Ford v. Statts, No. 88-6935, 1998 WL 1184108 (Super. Ct. Mass.
Middlesex. Feb. 17, 1998); 9) Fowler v. First Fed. S. & L. Ass’n,
                                                   (continued...)
No. 02-4129                                                     5

These cases uniformly stand for the proposition that a
lender cannot demand payment of late fees for failure to
make monthly payments after the loan has been acceler-
ated. However, not one of those cases address the issue
before us today. The distinguishing characteristic of this
case is the fact that the plaintiffs reinstated the note and
mortgage.
  The note provides for late fees when a monthly payment
has not been made within fifteen days of the date on which
it was due. (R. on Appeal at 18.) The reinstatement pro-
vision of the mortgage language requires payment of all
sums “which would then be due . . . had no acceleration
occurred.” (R. on Appeal at 18; emphasis added.) The effect
of this, from the plain language of the instrument, is retro-
active. In other words, the monthly payments are deemed
to have been due each and every month on the dates set out
in the mortgage and note. We find this language to unam-
biguously require plaintiffs to pay the late fees. Frederick v.
Prof’l Truck Driver Training Sch., 328 Ill.App. 3d 472, 481
(1st Dist. 2002) (where the terms of a contract are clear and
unambiguous, they must be enforced as written). It is
undisputed that the Rizzos did not make a certain number
of monthly payments. Because of this failure, foreclosure



1
  (...continued)
643 So.2d 30 (Fla. 1st DCA 1994); 10) In re Tavern Motor Inn,
Inc., 69 B.R. 138 (Bankr.D.Vt. 1987); 11) Manhattan & S. Savings
& Loan Ass’n of New York v. Massarelli, 42 A. 284 (N.J. Super. Ct.
Ch. Div. 1899); 12) Monument Realty, Inc. v. Youmatz, 18 Conn.
L. Rptr. 589 (Con. Super. Ct. 1997); 13) RTC Mortgage Trust
1995-S/N 1 v. J. I. Sopher & Co., 96 CIV 4992, 1998 WL 132815
(S.D.N.Y. Mar. 24, 1998); 14) Security Mutual Life Ins. Co. of New
York v. Contemporary Real Estate Assocs., 979 F.2d 329 (3d Cir.
1992); 15) Shadhali, Inc. v. Hintlian, 675 A.2d 3 (Conn. App. Ct.,
1996); 16) SKW Real Estate LP v. Gallicchio, 716 A.2d 903 (Conn.
App. Ct.,1998).
6                                               No. 02-4129

was sought. In order to avoid foreclosure, the Rizzos
reinstated the mortgage. In so doing, plaintiffs had to pay
“all sums which would be then due under this Mortgage and
the Note had no acceleration occurred.” (R. on Appeal at
18.)
  Plaintiffs repeatedly argue “if late charges are tied to
overdue ‘monthly payments,’ the absence of any ‘monthly
payment’ obligation after acceleration and before reinstate-
ment precludes the imposition of late charges for that per-
iod.” (Br. of Appellants at 17.) This argument is flawed in
that it claims there is an absence of an obligation to make
monthly payments after acceleration. While this may be the
case when the borrower does not seek to reinstate, it is not
the case here. As discussed above, it is clear that the
obligation to make monthly payments is retroactively
applied when the borrower seeks to reinstate. Since the
plaintiffs reinstated their mortgage, monthly payments
became retroactively due. Plaintiffs’ argument fails on its
face.
  The plaintiffs claim that the collection of late fees under
this mortgage and note violates the FDCPA. The FDCPA
prohibits using “false, deceptive, or misleading represen-
tation[s] or means in connection with the collection of any
debt” and “unfair or unconscionable means to collect or at-
tempt to collect any debt.” 15 U.S.C. § 1692f. This includes
the “collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation)
unless such amount is expressly authorized by the agreement
creating the debt or permitted by law. Id. (emphasis added).
We cannot find any false or misleading representations nor
can we deem the collection of late fees unfair or unconscio-
nable. The terms of the note and mortgage explicitly require
payment of all sums which would then be due had no
acceleration occurred. We hold that defendants have not
violated the FDCPA.
No. 02-4129                                                  7

  It should be noted that the Rizzos are not obligated to pay
the late fees in all cases. If, for whatever reason, the Rizzos
did not want to pay the late fees, they were free to pay the
loan as accelerated. Such a payment would nullify any
obligation to pay post-acceleration late fees.
  Reinstatement essentially allows the borrower a second
“bite at the apple.” It follows that the lender should not be
penalized, nor the borrower rewarded, for a breach on the
part of the borrower.
                                                   AFFIRMED




  WILLIAMS, Circuit Judge, concurring. The Rizzos missed
monthly payments and failed to pay late fees associated
with those missed payments, which prompted Fairbanks
Capital to accelerate their mortgage and hire Pierce &
Associates to institute a foreclosure action. Had the Rizzos
sought to reinstate their mortgage within 90 days as Illinois
law provides, see 735 ILL. COMP. STAT. 5/15-1602; Colon v.
Option One Mortgage Corp., 319 F.3d 912, 919 (7th Cir.
2003), reinstatement could have been “effected by curing all
defaults then existing” at the time of reinstatement. 735 ILL.
COMP. STAT. 5/15-1602 (emphasis added). Because the
Rizzos did not elect to reinstate within the statutorily
prescribed period, their efforts to do so were governed by
the terms of their agreement with Fairbanks Capital rather
than Illinois mortgage law.
  Had the Rizzos attempted to reinstate during the stat-
utory period, they would have been required to pay only the
monthly payments and late fees that they had failed to pay
in the months prior to acceleration, and to bring their loan
current by paying Fairbanks for the monthly payments that
8                                                    No. 02-4129

would have come due between acceleration and reinstate-
ment had acceleration never occurred. See RESTATEMENT
(THIRD) OF PROPERTY (MORTGAGES) § 8.1 cmt. e (1997). The
majority’s opinion should not be read to hold borrowers
liable for late fees on the monthly payments that would
have come due in the intervening months had acceleration
never occurred, if they sought to reinstate their mortgage
during the statutorily prescribed period. Such borrowers
would not be in default on any of these “missed” monthly
payments because they would never have been obligated to
make those payments during the post-acceleration pre-
reinstatatement period (i.e., acceleration stops the pay-
ments from actually coming due). It would follow then that
they could never have “failed” to make those payments.1
See, e.g., Sec. Mut. Life Ins. Co. of N.Y. v. Contemporary
Real Estate Assocs., 979 F.2d 329, 331 (3d Cir. 1992); see
also cases in majority opinion at note 1.2


1
  To hold otherwise would effectively reinstate those “missed”
monthly payments retroactively to the date they would have been
due (but for acceleration) and then to declare the borrowers in
default on those payments for failing to make them on those dates
in the past. This would contravene the express statutory language
and would not be supported by any existing law. It would also be
presuming that those reinstating borrowers would have failed to
timely make those “missed” payments had acceleration not
occurred, yet reinstatement wipes clean the borrowers’ slate with
respect to all of the missed payments which prompted acceleration
in the first place. 735 ILL. COMP. STAT. 5/15-1602; Colon, 319 F.3d
at 919 (“Reinstatement leaves the mortgage documents in place
as if no default or acceleration had occurred.”).
2
  If borrowers attempt to cure their defaults post-acceleration
by paying the missed monthly payments and the late fees that
were due at the time of acceleration, and any post-acceleration
monthly payments necessary to make their loan current, lenders
are likely obligated in equity to accept the payments and reinstate
                                                      (continued...)
No. 02-4129                                                   9

  The Rizzos’ situation is governed by the terms of their
mortgage rather than Illinois mortgage law. The majority’s
opinion should not be read to allow debt collectors to collect
unauthorized fees from borrowers who properly exercise
their statutory right to reinstate their mortgage, which
would violate the FDCPA, see 15 U.S.C. § 1692f(1). For the
foregoing reasons, I respectfully concur in the judgment of
the court.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




2
  (...continued)
the mortgage. See Fed. Nat. Mortgage Ass’n v. Bryant, 378 N.E.2d
333, 336 (Ill. App. Ct. 1978).


                    USCA-02-C-0072—12-12-03
