Justices toss Lakin class action against US Bank

Steve Gonzalez Jul. 10, 2006, 4:48pm

Justice Spomer

The Illinois Appellate Court unanimously reversed Madison County Circuit Court Judge Nicholas Byron's decision to deny US Bank's motion to dismiss a 2003 class action lawsuit. The July 7 decision, which effectively dissolves the case, asserts the plaintiffs "do not have standing."

Kenneth Kronemeyer of New Memphis and Darryl Johnson of Collinsville, represented by the Lakin Law Firm in Wood River and Freed and Weiss in Chicago, sought to establish a nationwide class of individuals who paid US Bank a fee when presenting for payment a check drawn on a US Bank account

They claimed that US Bank charged $10 to cash checks drawn by the bank's depositors and payable to them. They charge consumer fraud, wrongful dishonor and unjust enrichment.

On Jan. 24, 2005, US Bank filed a motion to dismiss arguing that the plaintiffs did not have standing to assert a cause of action for wrongful dishonor under section 4-402 of the Uniform Commercial Code.

Byron held a hearing May 13, 2005, an denied the motion.

On June 8, 2005, US Bank filed an unopposed motion to certify the preemption and jurisdiction issues for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 and an order was entered granting the motion and certifying the issues.

Authoring the opinion for the court, presiding Justice Steve Spomer wrote, "This court's examination of an interlocutory appeal is usually limited to the questions certified by the trial court and, as with all questions of law, is a de novo review. Thompson v. Gordon, 356 Ill. App. 3d 447, 451 (2005), aff'd, No. 100600 (June 2, 2006). Thus, in most circumstances, our task is to answer the certified question rather than to rule on the propriety of the underlying order. Thompson, 356 Ill. App. 3d at 451. In the interests of judicial economy and reaching an equitable result, however, we may go beyond the certified question and consider the appropriateness of the order giving rise to the appeal. Thompson, 356 Ill. App. 3d at 451. We find this to be such a case.

"The Uniform Commercial Code defines the word 'customer' as 'a person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank.' 810 ILCS 5/4-104(a)(5) (West 2004). Section 4-402(b) confers no cause of action on the holder of an allegedly dishonored item. Accordingly, the plaintiffs have no standing to pursue a cause of action against U.S. Bank for a wrongful dishonor. Because the plaintiffs lack standing, there is no reason to determine whether the plaintiffs' claim for wrongful dishonor is preempted by federal law.

"The OCC's interpretation that the word 'customer' includes payees who present a check to a drawee bank for payment is controlling. Consequently, the national banks are authorized by federal regulation 12 C.F.R. §7.4002(a) (2000) to charge non-account-holding payees a check-cashing fee. Thus, because the plaintiffs' state law claims seek damages from U.S. Bank based on the exercise of a power that federal law expressly grants the national banks, the plaintiffs' claims are in irreconcilable conflict with the federal regulatory scheme, and they are preempted by operation of the supremacy clause (U.S. Const., art. VI, cl. 2). See Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 134 L. Ed. 2d 237, 116 S. Ct. 1103 (1996).

"For the foregoing reasons, we hold that the plaintiffs do not have standing to bring a claim for wrongful dishonor under section 4-402 of the Uniform Commercial Code (810 ILCS 5/4-402 (West 2004)). We answer the first certified question in the affirmative regarding the plaintiffs' remaining claims, holding that the claims are preempted under the National Bank Act (12 U.S.C. §93a (2000)) and the regulations and regulatory interpretations of the OCC. We therefore decline to answer the second certified question on appeal. The order of the circuit court that denied U.S. Bank's motion to dismiss is reversed."

Justices Terrance Hopkins and James Donovan concurred with Spomer.

US Bank was represented by the Burroughs firm in Edwardsville.

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