                                                           NO. 5-06-0425
                        N O T IC E

 Decision filed 07/17/08. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
_________________________________________________________________________
GARY TREADWAY, Special Representative  )     Appeal from the
of the Estate of Juanita Treadway, Deceased,
                                       )     Circuit Court of
Individually and on Behalf of Others Similarly
                                       )     Madison County.
Situated,                              )
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     )     No. 05-L-27
                                       )
NATIONS CREDIT FINANCIAL SERVICES )
CORPORATION, d/b/a EquiCredit,         )     Honorable
                                       )     Lola P. Maddox,
      Defendant-Appellee.              )     Judge, presiding.
_________________________________________________________________________

                  JUSTICE SPOMER delivered the opinion of the court:

                  The plaintiff, Gary Treadway, the special representative of the estate of Juanita

Treadway, deceased, individually and on behalf of others similarly situated, appeals the

order of the circuit court of Madison County that dismissed his class action complaint
against the defendant, Nations Credit Financial Services Corp., doing business as EquiCredit
(EquiCredit). The plaintiff raises the following issues on appeal: (1) whether the circuit

court erred in dismissing Gary Treadway's complaint on the basis that it is preempted by

sections 85 and 86 of the National Bank Act (12 U.S.C. §§85, 86 (2000)) and (2) whether
Gary Treadway's complaint is barred by the doctrine of res judicata.
                  On November 26, 2007, we issued an opinion in this case in which we found that the

circuit court erred in dismissing Gary Treadway's claims on the basis of federal preemption.
We also found that Mr. Treadway's complaint was not barred by the doctrine of res judicata
because EquiCredit had acquiesced in the splitting of his causes of action. Accordingly, we


                                                                1
reversed the order of the circuit court that dismissed this action, and we remanded for further

proceedings not inconsistent with our opinion. On December 14, 2007, EquiCredit filed a
petition for a rehearing and an application for a certificate of importance pursuant to Illinois
Supreme Court Rule 316 (Official Reports Advance Sheet No. 26 (December 20, 2006), R.
316, eff. December 6, 2006). On January 7, 2008, we granted EquiCredit's petition for a
rehearing and denied its application for a certificate of importance. In its reply brief on

rehearing, EquiCredit requests that we reconsider its application for a certificate of

importance. Upon rehearing, and for the reasons set forth below, we affirm the order of the
circuit court that dismissed this action because we find that Gary Treadway's complaint is
barred by the doctrine of res judicata. We again deny EquiCredit's application for a

certificate of importance.
                                           FACTS

       The facts necessary for our disposition of this appeal are as follows. In September

1999, Juanita Treadway (Mrs. Treadway) obtained a $15,000 loan from EquiCredit secured

by a first mortgage on her home. Mrs. Treadway passed away in November 2001. On

October 22, 2003, Mrs. Treadway's son, Gary Treadway, filed a class action complaint in
the circuit court of Madison County against EquiCredit, which he amended on April 30,
2004 (the 2003 action). Although the 2003 action is not the subject of this appeal, it is a

part of the record on appeal and we discuss it here because it is relevant to our res judicata

analysis.
       The complaint in the 2003 action alleged that as a part of the closing costs for the
1999 loan to Mrs. Treadway, EquiCredit deducted $30 from the loan amount for what was

described on the closing statement as "Overnights Airborne-Equi[C]redit." According to
the 2003 complaint, Airborne Express charged less than $30 to deliver the closing
documents to the title company and EquiCredit secretly kept the remainder of the $30 fee


                                               2
for itself. The 2003 complaint, as amended, contained two alternative counts for unjust

enrichment.
       While the 2003 action was pending, Gary Treadway filed the instant class action
complaint in the circuit court of Madison County against EquiCredit on January 10, 2005
(the instant action). The complaint in the instant action alleged that as a part of the same
1999 loan transaction, EquiCredit charged Mrs. Treadway a $150 "loan discount fee."

According to the complaint in the instant action, EquiCredit did not reduce Mrs. Treadway's

interest rate in exchange for her payment of the loan discount fee but, instead, kept the fee
as profit for itself. Count I of the complaint alleged a cause of action for a breach of
contract. Count II alleged a violation of the Illinois Consumer Fraud and Deceptive

Business Practices Act (815 ILCS 505/1 et seq. (West 2004)) on the basis that the actions
forming the basis of the breach-of-contract claim amounted to a deceptive practice. Count

III alleged an alternative claim for unjust enrichment.

       On February 24, 2005, the discovery deposition of Gary Treadway was taken on

behalf of EquiCredit in the 2003 action. Gary Treadway testified that he did not accompany

Mrs. Treadway to the closing on the 1999 loan and did not speak to Mrs. Treadway about
the transaction until after the closing, when Mrs. Treadway told him she had taken out the
loan. Gary Treadway does not know how Mrs. Treadway came to do business with

EquiCredit, and neither he nor his siblings know any of the details of the transaction other

than what is stated on the paperwork. Mrs. Treadway never told him she thought she had
been overcharged on the transaction. Mrs. Treadway tended to her own affairs until her
death. Gary Treadway knew nothing about any "questionable" fees until he was solicited

by an attorney who was reviewing the paperwork associated with the transaction.
       On February 25, 2005, EquiCredit filed a notice that it had removed the instant action
to the United States District Court for the Southern District of Illinois. While the instant


                                             3
action was pending in the federal court, EquiCredit filed an answer and affirmative defenses

to Gary Treadway's complaint. EquiCredit raised the voluntary-payment doctrine as its sixth
affirmative defense. EquiCredit's eighth affirmative defense stated that in the event the case
was remanded to state court, Gary Treadway's claims would be barred by section 2-619(a)(3)
of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(3) (West 2004)) because
there was another action pending between the same parties for the same cause. On June 8,

2005, the United States District Court for the Southern District of Illinois entered an order

remanding the case to the circuit court of Madison County. Once the instant action was
remanded, Gary Treadway filed a reply to EquiCredit's affirmative defenses in the circuit
court of Madison County on August 18, 2005. Gary Treadway denied all of EquiCredit's

affirmative defenses. Meanwhile, EquiCredit filed a motion for a summary judgment in the
2003 action, arguing that the voluntary-payment doctrine barred Gary Treadway's claims.

       On September 6, 2005, EquiCredit filed a motion for leave to withdraw its answer

in the instant action and for leave to file a motion to dismiss pursuant to section 2-619 of the

Code (735 ILCS 5/2-619 (West 2004)) on the ground that Gary Treadway's claim is

completely preempted by the National Bank Act (12 U.S.C. §§85, 86 (2000)). In support
of its motion, EquiCredit asserted that it did not have an opportunity to file such a motion
prior to filing its answer because, at the time its answer was filed, the case had been removed

to and was pending in federal court and there is no equivalent to section 2-619 of the Code

under the federal rules of civil procedure. On October 13, 2005, the circuit court granted
the motion for leave to withdraw the answer and to file the motion to dismiss.
       EquiCredit filed its section 2-619 motion to dismiss in the instant action on October

19, 2005. As promised, EquiCredit argued that sections 85 and 86 of the National Bank Act
completely preempts Gary Treadway's claims. On April 27, 2006, a hearing was held on
EquiCredit's motion to dismiss in the instant action. Additionally, on June 26, 2006, the


                                               4
circuit court entered an order granting EquiCredit's motion for a summary judgment and

dismissing the 2003 action based on the voluntary-payment doctrine. On July 10, 2006, the
circuit court issued an order finding that sections 85 and 86 of the National Bank Act
preempted Gary Treadway's claim and dismissing the instant action. On July 31, 2006, Gary
Treadway filed a notice of appeal from the order dismissing the 2003 action. Gary
Treadway also filed a timely notice of appeal in the instant action on August 8, 2006. On

December 14, 2006, Gary Treadway voluntarily dismissed the appeal in the 2003 action.

                                        ANALYSIS
                                   1. Standard of Review
       We begin our analysis of the issues on appeal in the instant action with a discussion

of the standard of review. The circuit court dismissed Gary Treadway's claims pursuant to
section 2-619 of the Code, finding the claims preempted by the National Bank Act. "Section

2-619(a)(9) permits the dismissal of a claim when 'the claim asserted *** is barred by other

affirmative matter avoiding the legal effect of or defeating the claim.' 735 ILCS 5/2-

619(a)(9) (West 2002); Glisson v. City of Marion, 188 Ill. 2d 211, 220 (1999)." Moody v.

Federal Express Corp., 368 Ill. App. 3d 838, 841 (2006). " 'The phrase "affirmative matter"
refers to something in the nature of a defense that negates the cause of action completely or
refutes crucial conclusions of law or conclusions of material fact contained in or inferred

from the complaint.' " Moody, 368 Ill. App. 3d at 841 (quoting Glisson, 188 Ill. 2d at 220).

"The standard of review for an order granting a motion to dismiss pursuant to section 2-
619(a)(9) is de novo." Moody, 368 Ill. App. 3d at 841 (citing Glisson, 188 Ill. 2d at 220).
As previously noted, "We may, however, affirm the lower court on any basis in the record,

regardless of whether the trial court considered that basis or whether its decision is actually
supported by the bases it did consider." Moody, 368 Ill. App. 3d at 841 (citing Bell v.
Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985)).


                                              5
                                        2. Preemption

       Here, the circuit court dismissed the instant action on the basis that it is completely
preempted by the National Bank Act (12 U.S.C. §§85, 86 (2000)). Section 85 of the
National Bank Act provides, in relevant part, "Any association may take, receive, reserve,
and charge on any loan or discount made *** interest at the rate allowed by the laws of the
State, Territory, or District where the bank is located ***." 12 U.S.C. §85 (2000). Section

86 of the National Bank Act provides as follows:

              "The taking receiving, reserving, or charging a rate of interest greater than is
       allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture
       of the entire interest which the note, bill, or other evidence of debt carries with it, or

       which has been agreed to be paid thereon. In case the greater rate of interest has been
       paid, the person by whom it has been paid, or his legal representatives, may recover

       back, in an action in the nature of an action of debt, twice the amount of the interest

       thus paid from the association taking or receiving the same: Provided, That such

       action is commenced within two years from the time the usurious transaction

       occurred." 12 U.S.C. §86 (2000).
In Beneficial National Bank v. Anderson, 539 U.S. 1, 11, 156 L. Ed. 2d 1, 10, 123 S. Ct.
2058, 2064 (2003), the United States Supreme Court found as follows:

       "In actions against national banks for usury, [sections 85 and 86] supercede both the

       substantive and the remedial provisions of state usury laws and create a federal
       remedy for overcharges that is exclusive, even when a state complainant *** relies
       entirely on state law. Because [sections] 85 and 86 provide the exclusive cause of

       action for such claims, there is, in short, no such thing as a state-law claim of usury
       against a national bank."
       EquiCredit argues, and the circuit court held, that the United States Supreme Court's


                                               6
holding in Beneficial National Bank applies to the instant action. In so holding, the circuit

court relied primarily on Phipps v. Federal Deposit Insurance Corp., 417 F.3d 1006 (8th
Cir. 2005). In Phipps, at issue was whether the plaintiffs' claims that their lender had
charged them unlawful and excessive fees, including a loan discount fee, in violation of
Missouri's Second Mortgage Loan Act (Mo. Ann. Stat. §408.231 et seq. (West 2002)) were
completely preempted by sections 85 and 86 of the National Bank Act. 417 F.3d at 1009.

The plaintiffs argued that their claims were not for interest but for fees and thus were not

preempted. Phipps, 417 F.3d at 1011. The court of appeals disagreed, concluding that the
plaintiffs' claims were for excessive interest and thus were completely preempted under
Beneficial National Bank. Phipps, 417 F.3d at 1012.

       The circuit court also relied on Dannewitz v. EquiCredit Corp. of America, 362 Ill.
App. 3d 82 (2005), in making its finding that the instant cause is preempted by the National

Bank Act. In Dannewitz, our colleagues in the First District held that the plaintiffs' claims

that the defendant violated the Illinois Interest Act (815 ILCS 205/4 et seq. (West 2002)) and

the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.

(West 2002)) based on the inclusion of an allegedly unlawful prepayment penalty in the
plaintiffs' residential mortgage loan were preempted by the National Bank Act. 362 Ill. App.
3d at 87. In so holding, the court rejected the plaintiffs' argument that because the loans at

issue were made by a nonnational bank and subsequently purchased by a national bank, the

National Bank Act did not apply. Dannewitz, 362 Ill. App. 3d at 85.
       We find neither of the decisions relied upon by the trial court determinative of the
issue at hand. Gary Treadway does not allege that EquiCredit charged Mrs. Treadway

interest that exceeded any limit imposed by any state or federal lending statute or regulation.
Instead, Gary Treadway alleges a breach of contract, a violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act, and unjust enrichment based on EquiCredit's


                                              7
failure to reduce Mrs. Treadway's interest rate in exchange for her payment of the loan

discount fee. Accordingly, these are not the state law usury claims that were held to be
completely preempted under the Beneficial National Bank court's analysis.
                                       3. Res Judicata
       Although we conclude that the circuit court erred in its finding that Gary Treadway's
claims are preempted by the National Bank Act, we will address EquiCredit's argument that

the claims are also barred by the doctrine of res judicata. "[F]or res judicata to bar a

subsequent action, three requirements must be met: (1) there was a final judgment on the
merits rendered by a court of competent jurisdiction; (2) there was an identity of cause of
action; and (3) there was an identity of parties or their privies." Rein v. David A. Noyes &

Co., 172 Ill. 2d 325, 337 (1996). "If the three elements necessary to invoke res judicata are
present, res judicata will bar not only every matter that was actually determined in the first

suit, but also every matter that might have been raised and determined in that suit." Rein,

172 Ill. 2d at 338. Here, the first element of res judicata is met because there was a final

judgment on the merits in the 2003 action that was rendered by the circuit court of Madison

County, a court of competent jurisdiction. The third element of res judicata is also met,
because there is obviously an identity of parties in the 2003 action and the instant action.
Thus, the essential question is whether the second element of res judicata is met, that is,

whether there was an identity of causes of action in the first and second suits.

       In order to determine whether there is an identity of the cause of action, Illinois now
uses the transactional test, rather than the same-evidence test. River Park, Inc. v. City of
Highland Park, 184 Ill. 2d 290, 310-11 (1998). "[P]ursuant to the transactional analysis,

separate claims will be considered the same cause of action for purposes of res judicata if
they arise from a single group of operative facts, regardless of whether they assert different
theories of relief." River Park, Inc., 184 Ill. 2d at 311. Under the transactional test, claims


                                              8
are "considered part of the same cause of action even if there is not a substantial overlap of

evidence, so long as they arise from the same transaction." River Park, Inc., 184 Ill. 2d at
311 (citing Restatement (Second) of Judgments §24, Comment b, at 199 (1982)).
       Here, the 2003 action and the instant action arise from the same transaction–the 1999
loan transaction whereby Mrs. Treadway borrowed $15,000 from EquiCredit, secured by a
first mortgage on her home. Both actions assert that EquiCredit improperly charged fees in

connection with that loan transaction. The fees challenged in each action appeared on the

same settlement statement, and both fees were paid by one deduction from the loan proceeds.
       We find Gary Treadway's reliance on LP XXVI, LLC v. Goldstein, 349 Ill. App. 3d
237 (2004), misplaced. In that case, the court held that a prior mortgage foreclosure action

and the action at issue for a deficiency judgment against the guarantor of a note secured by
a mortgage did not involve the same cause of action under the transactional test for purposes

of res judicata. LP XXVI, LLC, 349 Ill. App. 3d at 241. In so holding, the court focused on

the well-settled law that upon a default, the mortgagee is allowed to choose whether to

proceed on the note or guaranty or to foreclose upon the mortgage and that these remedies

may be pursued consecutively or concurrently. LP XXVI, LLC, 349 Ill. App. 3d at 241-42.
The same considerations are simply not present in this case.
       Additionally, Gary Treadway argues that EquiCredit waived the issue of res judicata

by acquiescing in Gary Treadway's splitting of the causes of action into two separate

lawsuits, and he cites Thorleif Larsen & Son, Inc. v. PPG Industries, Inc., 177 Ill. App. 3d
656, 662 (1988), and Piagentini v. Ford Motor Co., 366 Ill. App. 3d 395, 402-03 (2006),
vacated, 228 Ill. 2d 552 (2008) (supervisory order), in support of his argument. In Thorleif

Larsen & Son, Inc., the court applied Comment a to section 26 of the Restatement (Second)
of Judgments:
              " 'Where the plaintiff is simultaneously maintaining separate actions based


                                              9
       upon parts of the same claim, and in neither action does the defendant make the

       objection that another action is pending based on the same claim, judgment in one of
       the actions does not preclude the plaintiff from proceeding and obtaining judgment
       in the other action. The failure of the defendant to object to the splitting of the
       plaintiff's claim is effective as an acquiescence in the splitting of the claim.' " 177 Ill.
       App. 3d at 662 (quoting Restatement (Second) of Judgments §26, Comment a, at 235

       (1982)).

The court in Thorleif Larsen & Son, Inc. found that the defendant had acquiesced to the
splitting of the causes of action because the defendant had represented to the trial court in
an argument on a motion to dismiss the first action that the plaintiff was not without a

remedy because it had filed the second action. 177 Ill. App. 3d at 662. In the second action,
the defendant had answered the complaint, raised affirmative defenses, and initiated pretrial

discovery. Thorleif Larsen & Son, Inc., 177 Ill. App. 3d at 662. Additionally, the record in

Thorleif Larsen & Son, Inc. disclosed no objection on the defendant's part to the splitting of

the claim. 177 Ill. App. 3d at 662.

       In Piagentini, the plaintiffs filed a multicount complaint against the defendant. 366
Ill. App. 3d at 396. Thereafter, an agreed order for a partial summary judgment on some of
the allegations in the complaint was entered. Piagentini, 366 Ill. App. 3d at 397. The

plaintiffs then voluntarily dismissed the remaining claims pursuant to section 2-1009 of the

Code (735 ILCS 5/2-1009 (West 2000)). Piagentini, 366 Ill. App. 3d at 397. Within one
year of the voluntary dismissal, the plaintiffs refiled this cause of action. Piagentini, 366 Ill.
App. 3d at 397. Court records, of which we may take judicial notice (see Country Cos. v.

Universal Underwriters Insurance Co., 343 Ill. App. 3d 224, 229 (2003)), reveal that the
defendant did not raise another action pending or res judicata as an affirmative defense in
its answer. Three and a half years after the refiled action was pending, which was also three


                                               10
months prior to the trial date, the defendant filed a motion for a summary judgment in which

it raised res judicata as a defense for the first time, arguing that because a partial summary
judgment in the previous action had been entered on some counts, the plaintiffs were barred
from refiling the remaining counts based on the same occurrence. Piagentini, 366 Ill. App.
3d at 397. The court found that because the defendant did not raise the defense of res
judicata at the time of the refiling and instead waited until the parties had litigated the case

for 3½ years, the defendant acquiesced in the splitting of the causes. Piagentini, 366 Ill.

App. 3d at 403.
       We find the case at bar to be distinguishable from both Thorleif Larsen & Son, Inc.
and Piagentini and do not find that EquiCredit's conduct in this case rises to the level of

acquiescence. It is important to note that the supreme court has vacated the appellate court's
opinion in Piagentini and issued a supervisory order directing the appellate court to

reconsider its judgment in light of Hudson v. City of Chicago, 228 Ill. 2d 462 (2008).

Piagentini v. Ford Motor Co., 228 Ill. 2d 552 (2008) (supervisory order). EquiCredit filed

an answer and affirmative defenses to Gary Treadway's complaint after the instant action had

been removed to federal court. EquiCredit's eighth affirmative defense stated that in the
event the case was remanded to state court, Gary Treadway's claim would be barred by
section 2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2004)) because there was

another action pending between the same parties for the same cause.

       Although EquiCredit later moved to withdraw its answer, which contained the
affirmative defense of another action pending, and chose to file a motion to dismiss based
solely on federal preemption, we decline to find that this subsequent motion to dismiss on

other grounds amounts to acquiescence. Pursuant to section 2-619(d) of the Code, the
failure to raise a defense by motion does not preclude a party from raising a defense by
answer. 735 ILCS 5/2-619(d) (West 2004). The only defense that the Code expressly


                                              11
provides must be asserted in the first responsive pleading, or else it is forfeited, is the

defense of a lack of personal jurisdiction. 735 ILCS 5/2-301(a) (West 2004). Accordingly,
EquiCredit would be free to raise res judicata as an affirmative defense if this case were
remanded to the circuit court.
       In addition, the basis for the final judgment in the 2003 action–that Gary Treadway's
claims are barred by the voluntary-payment doctrine–could still be raised by EquiCredit and

is germane to the instant action. Based on the record, it seems that the analysis would be

similar in both actions. The Illinois Supreme Court has recently reiterated the importance
of res judicata as a doctrine of judicial economy that exists to avoid burdening the courts
and litigants with duplicative litigation. Hudson v. City of Chicago, 228 Ill. 2d 462, 482

(2008). In the interests of judicial economy and because we can affirm on any basis in the
record, we find that Gary Treadway's claims in the instant action are barred by the doctrine

of res judicata.

                                       CONCLUSION

       For the foregoing reasons, the order of the circuit court that dismissed the instant

action is affirmed.


       Affirmed.



       DONOVAN, J., concurs.


       JUSTICE CHAPMAN, dissenting:

       I respectfully dissent from the majority opinion on rehearing. I agree with the court's
analysis regarding the preemption issue. However, I am unpersuaded by the defendant's
petition-for-rehearing argument regarding res judicata. I reiterate the court's earlier analysis.


                                               12
       EquiCredit argues in its brief that even if we conclude that the circuit court erred in

its finding that Gary Treadway's claims are preempted by the National Bank Act, the claims
are also barred by the doctrine of res judicata because the fees challenged in each action
appeared on the same settlement statement and both fees were paid by one deduction from
the loan proceeds. In response, Gary Treadway argues that EquiCredit waived the issue of
res judicata by acquiescing in Gary Treadway's splitting of the causes of action into two

separate lawsuits, and he cites Thorleif Larsen & Son, Inc. v. PPG Industries, Inc., 177 Ill.

App. 3d 656, 662 (1988), in support of his argument. In Thorleif Larsen & Son, Inc., the
court quoted and applied Comment a to section 26 of the Restatement (Second) of
Judgments:

              " 'Where the plaintiff is simultaneously maintaining separate actions based
       upon parts of the same claim, and in neither action does the defendant make the

       objection that another action is pending based on the same claim, judgment in one of

       the actions does not preclude the plaintiff from proceeding and obtaining judgment

       in the other action. The failure of the defendant to object to the splitting of the

       plaintiff's claim is effective as an acquiescence in the splitting of the claim.' "
       Thorleif Larsen & Son, Inc., 177 Ill. App. 3d at 662 (quoting Restatement (Second)
       of Judgments §26, Comment a, at 235 (1982)).

       I find that EquiCredit's conduct in this case rises to the level of acquiescence.

Although EquiCredit's answer to Gary Treadway's complaint in the instant action does not
appear in the record, Gary Treadway filed a reply to EquiCredit's affirmative defenses in the
circuit court of Madison County on August 18, 2005, after the instant case had been

remanded from the federal court. According to the reply, EquiCredit's eighth affirmative
defense stated that in the event the case was remanded to state court, Gary Treadway's claim
would be barred by section 2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2004))


                                             13
because there was another action pending between the same parties for the same cause.

However, EquiCredit later voluntarily withdrew that answer, including the affirmative
defense that another action was pending, and filed a motion to dismiss based solely on
federal preemption. In addition, EquiCredit did not move to amend its motion or file an
alternative motion on the basis of res judicata after the summary judgment had been entered
in the 2003 action. Based on EquiCredit's choice to proceed solely on federal preemption

at this stage in the proceedings, I find that EquiCredit acquiesced to the splitting of the

causes and thereby waived the issue of res judicata for purposes of this appeal by its failure
to raise the issue in the circuit court.




                                             14
                                          NO. 5-06-0425

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      GARY TREADW AY, Special Representative of   ) Appeal from the
      the Estate of Juanita Treadway, Deceased,   ) Circuit Court of
      Individually and on Behalf of Others Similarly
                                                  ) Madison County.
      Situated,                                   )
                                                  )
         Plaintiff-Appellant,                     )
                                                  )
      v.                                          ) No. 05-L-27
                                                  )
      NATIONS CREDIT FINANCIAL SERVICES           )
      CORPORATION, d/b/a EquiCredit,              ) Honorable
                                                  ) Lola P. Maddox,
         Defendant-Appellee.                      ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:                   November 26, 2007
Petition for Rehearing Granted:         January 7, 2008 (November 26, 2007, opinion vacated)
Opinion on Rehearing Filed:      July 17, 2008
___________________________________________________________________________________

Justices:          Honorable Stephen L. Spomer, J.

                   Honorable James K. Donovan, J., concurs

                   Honorable Melissa A. Chapman, J., dissents
___________________________________________________________________________________

Attorneys        Bradley M. Lakin, Gerald R. Walters, Gail G. Renshaw, Richard J. Burke, The Lakin
for              Law Firm, P.C., 300 Evans Avenue, P.O. Box 220, Wood River, IL 62095-1127;
Appellant        Timothy F. Campbell, Campbell, McGrady & Hoefert, 3017 Godfrey Road, P.O. Box
                 505, Godfrey, IL 62035; Charles W. Chapman, Charles W. Chapman, Chtd., 300
                 Evans Avenue, P.O. Box 220, Wood River, IL 62095-1127; Phillip A. Bock, Robert
                 M. Hatch, Diab & Bock, LLC, 20 N. Wacker Drive, Suite 1741, Chicago, IL 60606;
                 Paul M. Weiss, Freed & Weiss, LLC, 111 West Washington Street, Suite 1331,
                 Chicago, IL 60602
_____________________________________________________________________________________
Attorneys          Lawrence M. Benjamin, Neal, Gerber & Eisenberg LLP, 2 North LaSalle Street,
for                Suite 2300, Chicago, IL 60602; Robert Shultz, Jr., Joseph P. Whyte, Heyl, Royster,
Appellee           Voelker & Allen, 105 W. Vandalia Street, Suite 100, P.O. Box 467, Edwardsville,
IL
                62025
___________________________________________________________________________________
