'Unclean hand' doctrine proposed in class defense

Steve Korris Jan. 6, 2006, 6:19am

Plaintiff attorney Thomas Maag

Circuit Judge Daniel Stack

The old rule, "Three strikes and you're out," does not apply to Bancorp banking company as it defends itself in a proposed Madison County class action suit.

Circuit Judge Daniel Stack, at a Dec. 21 hearing, struck four affirmative defenses that Bancorp had raised in response to a suit that county resident Diane Turner filed last year.

Stack, however, left two of Bancorp's defenses intact and gave the company 30 days to replead five other defenses--one of which proposes Turner's claims be barred under the doctrine of "unclean hands."

The doctrine of unclean hands applies when those who complain about improper conduct in others have themselves engaged in improper conduct.

Stack's mixed ruling looks natural in a mixed-up case.

Turner sued ITI Internet Services, Bancorp and Moonlight Marketing on Feb. 15, hours before the new national Class Action Fairness Act took effect.

In Turner's complaint, attorney Thomas Maag of the Lakin Law Firm in Wood River wrote that she received notice of a $199 deduction from her checking account.

Maag wrote that she showed her bank that the check had been forged, but she remained liable for fees associated with it.

He also wrote that ITI Internet processed transfers for Moonlight Marketing through Bancorp. He wrote that Moonlight Marketing did not have permission from account holders to charge their accounts.

Maag moved to certify Turner as representative of a national plaintiff class that would include thousands of individuals.

Bancorp removed the suit to U.S. District Court in May, arguing that the facts required treatment under the federal Electronic Funds Transfer Act

U.S. District Judge David Herndon remanded the case to Madison County in September.

ITI Internet's attorney, Mark Bauman of Edwardsville, moved Oct. 3 to dismiss his client for lack of personal jurisdiction. He submitted an affidavit in which ITI president Virgil Llapitan stated that he had no office or employees in Illinois.

Maag answered that ITI had more than 688 clients in Illinois.

At an Oct. 26 hearing before Stack, Maag called Llapitan to the stand. Heads turned in the nearly empty courtroom, but no one took the stand.

Bauman told Stack that Llapitan was at his place of business in Tacoma, Wash. He said Llapitan received notice to appear too late to make the trip.

Stack took ITI's motion under advisement. He said Maag could continue to pursue discovery on the question of jurisdiction.

In the meantime Bancorp's attorney, Vincent Borst of Chicago, had submitted 11 affirmative defenses to Turner's complaint. Maag moved Nov. 4 to strike all 11 defenses.

Stack heard arguments Dec. 21. He granted Maag's motion as to Bancorp's first three defenses - failure to state a claim upon which to grant relief, lack of personal jurisdiction, and inappropriate venue.

Stack denied Maag's motion as to Bancorp's fourth defense - that Turner failed to join her own bank as a necessary party.

Stack granted Maag's motion as to Bancorp's fifth defense - that the doctrine of forum non conveniens barred Turner's claim.

Stack neither granted nor denied defenses six through 10, advising Borst to replead them. In these defenses Bancorp had proposed to bar Turner's claims under the doctrines of waiver, laches, equitable estoppel, statute of limitations and "unclean hands."

Finally, Stack denied Maag's motion to strike Bancorp's 11th defense – that Turner has not suffered any damages.

Stack set a hearing March 23 on the jurisdiction motions of ITI and Bancorp. He set an Oct. 6 deadline for discovery on the question of class certification.

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