Alton attorney accidentally sues himself
Steve Korris Mar. 11, 2005, 3:57am
Emert Wyss's Alton office
Alton attorney Emert Wyss thought he could make money in a Madison County class action lawsuit, but he accidentally sued himself instead. Now he has four law firms after his money - and he hired all four.
Wyss's boomerang litigation started in 2002, when he invited Carmelita McLaughlin to his office at 1600 Washington St. in Alton. Acting as her attorney when she bought a home in Alton and when she refinanced it, on both occasions she had chosen Centerre Title--a company that Wyss owned--to close her loans.
In the course of the attorney-client relationship, Wyss advised McLaughlin she might have a claim against Alliance Mortgage, holder of the first mortgage. Wyss believed Alliance Mortgage might have broken the law by charging a $60 fax fee when she refinanced.
He produced a retainer agreement providing for his legal services and those from the Lakin Law Firm of Wood River, Campbell and Brinkley of Godfrey, Freed and Weiss of Chicago, and Diab and Bock of Chicago. McLaughlin signed.
The Lakin firm filed a class action complaint against Alliance Mortgage in 2003. The complaint identified the Chicago firms and Campbell and Brinkley as other attorneys of record, but not Wyss.
According to the complaint, McLaughlin objected to the fax fee at closing.
Alliance Mortgage retained attorney Don Brown of Weiner Brodsky Sidman Kider, of Washington, D. C.
In a deposition last year, Brown asked McLaughlin if she objected to the fees in general or the fax fee. She said, "To the fees in general."
Brown asked if she saw a payoff statement. She said she did not recall it.
"If you didn't see this document at loan closing then how would you have known that you were being charged a fax fee?" Brown asked.
"I knew I was being charged fees but I didn't know that it was particular, you know, that it was a fax fee," McLaughlin responded.
"Did you review this complaint for accuracy before your attorneys filed it?" Brown countered.
McLaughlin replied, "no."
"Centerre Title is the one that collected the fees from you that you are now complaining about, is that right?" Brown questioned.
McLaughlin said, "yes."
"Mr. Wyss was suggesting to you that you might want to complain about fees that his employee collected from you. That's right, isn't it?" Brown questioned.
McLaughlin said, "yes."
Brown asked what Wyss said about the fax fee. But in the deposition, attorney Paul Marks of the Lakin firm objected.
"Attorney client privilege," Marks said. "Confidential in nature."
Brown countered, "If he is her attorney maybe he should be here, but he is not her attorney."
Directing his questions again to McLaughlin, Brown asked if she knew how other law firms came to represent her. She said she did not.
"Were you ever asked whether you would consent to have any of these other law firms represent you in this litigation?" Brown asked.
"I was told there, you know, might be other people, and I did not have a problem with that," McLaughlin replied.
"The fax fee of $60 represents two payoff statements, is that right?" Brown asked.
McLaughlin said she did not know.
"That would represent a fax fee of $30 per payoff statement, is that right?" Brown asked.
McLaughlin said, "If you say so. I don't know."
Brown asked if she understood that her lawyers would seek compensation for her as a class representative if the suit succeeded.
McLaughlin said, "That is my understanding."
"But you have no understanding of what amount might be involved, is that right?" Brown asked.
McLaughlin said, "no."
Brown deposes Wyss
Turning his attention to Wyss, Brown asked if plaintiffs he referred to the Lakin firm were told that he might receive part of the fees.
"They have signed an engagement, a retainer agreement which indicates that I am one of the attorneys representing them," Wyss responded.
"You have retainer agreements then, in your possession, to give to people that include the Lakin law firm as one of the firms that will represent them, is that correct?" Brown asked.
Wyss said, "yes."
Brown asked what prompted him to refer mortgage cases to the Lakin firm. Wyss said attorneys told him they were aware of lender abuse and suggested that he review Centerre Title files to see if his clients were victimized.
When asked who told him that, Wyss replied "Tim Campbell."
Brown asked what prompted Campbell to talk to him.
"I consider him a true consumer advocate," Wyss said. "I don't know how he became aware, but he apparently was aware of other lender abuse in the area that I was not privy to."
Brown asked if Campbell had a retainer agreement in the McLaughlin case.
Wyss said, "yes."
"The true consumer advocate hopes to make some money out of this case, doesn't he?" Brown asked.
Wyss said, "probably."
"You yourself hope to make some money out of this case, don't you?" Brown asked.
Wyss replied, "I would like to."
Brown asked Wyss if he was McLaughlin's attorney for purposes of this litigation.
Wyss said, "I am one of her attorneys."
Brown asked if he was her attorney at the time Centerre Title closed the loan.
Wyss said, "no."
"Emert Wyss, wearing his hat of Centerre Title company, collects the fees from Ms. McLaughlin, and now we have six, seven, eight months later, Emert Wyss wearing his hat as Ms. McLaughlin's attorney suggests she file suit over the very fees his title company collected from her, is that right?" Brown asked.
Wyss replied, "That is right. It oversimplifies it, but that is correct."
Brown asked Wyss if he had an agreement with the Lakin firm, and he responded that he had a verbal agreement.
When Brown asked what it was, Wyss replied, "I am to receive 10 percent of the attorney fee collected on these cases."
"Since Ms. McLaughlin signed a written retainer that included your name on it as one of her attorneys, can you tell me why your name is not on her complaint?" Brown asked.
Wyss said, "I see no reason why it has to be on the complaint."
Brown asked if he reviewed the complaint before it was filed and Wyss answered, "I do not believe I did, but I am not really sure. I may have."
"You have no recollection of reviewing it before it was filed?" Brown asked.
Wyss said, "No recollection at the moment, no."
After completing the depositions, Brown moved Circuit Judge Phillip Kardis for summary judgment.
In a separate motion, Brown asked Kardis to dismiss the suit for failure to join Centerre Title as a necessary party. He asked Kardis to disqualify all of McLaughlin's attorneys for improper solicitation, arguing that they used Wyss as a straw man to obtain cases from Centerre Title clients whom they could not directly approach.
In December, Kardis denied the motion to dismiss but ordered Alliance Mortgage to add Centerre Title and Wyss himself as third party defendants. Kardis denied the motion to disqualify McLaughlin's attorneys.
Apparently, Wyss surrendered his ten percent. Kardis wrote, "Defendants were provided with a fee renunciation letter." Kardis sealed the letter.
McLaughlin responded to Alliance Mortgage's motion for summary judgment on March 3.
Alliance Mortgage must reply to McLaughlin's response by March 24. Kardis has told the parties he would hear arguments on summary judgment after that.