Weber dismisses Lakin $30 courier fee class action

Steve Gonzalez Jun. 28, 2006, 12:29pm

Joe Whyte

Madison County Circuit Judge Don Weber granted Equicredit's motion for summary judgment and dismissed a $30 courier fee class action case brought by the Lakin Law Firm.

It is the third Lakin class action lawsuit dismissed by Weber in the seven months since he has been judge. Several months ago, the Lakin firm had attempted to remove Weber from all its pending Madison County class action cases.

In 2003, Gary Treadway filed the case as special administrator of his mother Juanita's estate, claiming his mother did not know the mortgage company would keep some of the $30 it charged to obtain loan documents to complete a loan transaction in 1999.

"If plaintiff were to prevail, her estate would receive something less than $30, probably somewhere in the range of $10," Weber wrote in his order. "If the court were to make the extraordinary finding that a deceased plaintiff is able to adequately represent a class of borrowers such as this, the case would generate perhaps millions of dollars in attorney's fees."

Weber also indicated that plaintiff's argument was weak.

"There is no other evidence in the record as to the state of mind of Juanita Treadway at closing," he wrote. "Plaintiff's attorneys did not ask the court for further time to develop additional facts in opposition to the motion for summary judgment but chose to rely on the record before the court."

Charles Chapman and Gerald Walters argued the motion for Treadway.

According to the complaint, the $30 charge was listed on the HUD settlement statement on line 112 and was designated as "overnight Airborne-Equicredit."

Treadway argued that his mother did not have full knowledge of the facts, specifically that she did not know Equicredit would keep some part of the $30, however at his deposition he testified that he was not at the closing, no one else assisted his mother, and he had no knowledge of the circumstances under which the loan was made.

He claimed his mother would not have agreed to the $15,000 loan had she known that Equicredit would keep some part of the $30.

Equicredit, represetned by Joe Whyte of Heyl Royster, asserted the defense of "voluntary payment" claiming it provides that if a person pays a charge with full knowledge of the facts they are prohibited from paying in silence and afterward suing for an alleged wrong.

Weber also pointed out that a recent case from the Fifth District, Harris v. Chartone discussed the voluntary payment doctrine. The appellate court affirmed the dismissal of a suit based on the doctrine, ruling that plaintiff did not make any effort to discover the nature of the fees charged.

"Harris v. Chartone requires that a plaintiff make some inquiry as to the nature of the charges once those charges are made known," Weber wrote.

Weber also pointed out that the HUD settlement statement had Juanita's signature and that it is undisputed that it showed the $30 going to as "overnight Airborne-Equicredit."

"There is no evidence in the record that she did not see or read the HUD document," he wrote. "Indeed, all of the evidence points to the fact that she was aware of the $30 charge and agreed to it.

"Due to her death in 2001, it is now impossible to ask Juanita Treadway whether she would have refused the loan if she had known more conclusively that part of the $30 was going to Equicredit."

"However, if plaintiff is to maintain a cause of action he must come forward with some evidence that the payment was involuntary. This he cannot do because his only witness is deceased.

"A Latin phrase, caveat emptor, is also useful in this analysis," Weber wrote.

"Caveat emptor means literally, let the buyer beware.

"This court recognizes the difference between consumer fraud and sharp, but not lawful business practices. In our free society, a buyer has some obligation to make a reasonable investigation of charges such as these."

On May 16, Weber granted National City Mortgage Company's motion for summary judgment and dismissed a $20 fax fee class action case brought by the Lakin Law Firm.

Donald and Patricia Agney had accused the lender of charging an unreasonable fee for faxes in refinancing their loan in 1999.

Their existing loan had an interest rate of 9.5 percent and their newer loan through National City had a lower rate of 8.49 percent.

"Although the plaintiffs attorneys advocated their case well in both the briefs and at the presentation of the argument, the court prefers to take a common sense view of the evidence," Weber wrote in that case.

"The fax fee was only $20, compared to a better than 1% reduction of their mortgage. Additionally, the fax fee was almost certainly disclosed to the plaintiffs on their coupon book," he also wrote.

"Plaintiffs were apparently pleased about their new mortgage since they did not object to the fax fee for 4 years and until they were contacted by the class action attorneys."

On June 7, United Parcel Service successfully convinced Madison County Circuit Judge Don Weber to dismiss a class action case filed by a customer who wanted a $5 refund because an "overnight" package he sent did not arrive on time.

In his order, Weber chided plaintiff's argument as "fatally defective."

Weber also turned a nationwide class action case filed against United Life Insurance in Madison County into an Illinois-only action using two recent Illinois Supreme Court decisions to make his ruling. That case was also filed by the Lakin Law Firm.

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Heyl Royster
124 SW Adams St
Peoria, IL 61602

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