Maddox to rule on Alliance class action

Steve Korris Aug. 1, 2006, 11:00am

Circuit Judge Lola Maddox must decide whether to proceed with a Lakin Law Firm suit that has exposed Madison County to national ridicule.

Maddox has taken under advisement a motion for summary judgment in a proposed class action suit that Carmelita McLaughlin filed against Alliance Mortgage in 2003.

McLaughlin claims the lender improperly charged $60 for two facsimile transmissions when she closed a home loan.

In May, Tonight Show host Jay Leno featured McLaughlin's suit as a case of a lawyer suing himself.

Leno displayed a Madison County Record article reporting that attorney Emert Wyss of Alton initiated the suit only to find himself and his title company added as defendants.

By the time Leno ran the story, Wyss had succeeded in dismissing himself as defendant. His company, Centerre Title, remains on the hook.

The Lakin firm filed McLaughlin's suit and about 26 other proposed class actions over mortgage fees from 2002 to 2004.

All the plaintiffs closed their loans at Centerre Title, a company Wyss owned and operated next to his law office.

According to McLaughlin's testimony in a deposition, Wyss invited her to his law office and told her she might have paid improper fees.

She signed retainers for the Lakin firm and three other firms.

According to Wyss's testimony in a deposition, he expected to collect a tenth of the proceeds. His name, however, did not appear among the attorneys who filed McLaughlin's complaint.

Alliance Mortgage moved to add Wyss and Centerre Title as third party defendants, arguing that if anything went wrong at the loan closing, the title company should have spotted it.

Circuit Judge Phillip Kardis granted the motion.

Last year the Record reported that Wyss accidentally sued himself.

The story hit, a website of oddities, and drew about 40,000 viewers to the Record website. St. Louis radio stations KTRS and KMOX featured the story.

Wyss moved to dismiss himself and Centerre Title as third party defendants. Kardis dismissed Wyss but did not dismiss Centerre Title.

Alliance Mortgage moved for summary judgment against McLaughlin.

Kardis retired last year. His cases passed to Circuit Judge Don Weber, but in this case and many others, the Lakin firm moved for substitution.

In Illinois any party can substitute a judge once without cause, if the judge has not made a substantial ruling.

The case bounced to Maddox, who set a July 28 hearing on Alliance Mortgage's motion for summary judgment.

At the hearing defense attorney Troy Bozarth argued that the doctrine of voluntary payment barred McLaughlin's claim.

Maddox asked if anything told McLaughlin that a fax would cost $30.

Bozarth said the payoff statement showed the fees. He said the fees were rightfully incurred and they were authorized.

He said it did not matter if McLaughlin or Centerre Title authorized payment.

"It would probably be better if you did not anticipate their arguments," said Maddox.

Paul Marks of the Lakin firm argued that McLaughlin paid under compulsion. He said the contract conditioned the release of her funds on payment of the fees.

He said, "They didn't mean it." He said they admitted they would have released the funds if she had not paid the fees.

Maddox said, "They admitted what?"

Marks said, "The mortgage would have been released without the payment."

Bozarth said, "The payoff statement does not say anything contradictory."

Marks said, "It does."

Maddox asked Marks if McLaughlin reviewed the payoff statement. Marks said, "Probably not."

Maddox said, "Did she want them to extend credit to her?" Marks said yes.

Maddox said, "What would keep her from getting a mortgage from somebody else?"

Marks said she would have incurred greater interest and closing costs.

Marks told Maddox the voluntary payment doctrine did not apply.

Maddox said, "Even if the fee is disclosed?"

Marks said, "Disclosed to whom?"

Maddox said that according to Marks's theory, "…every mortgage ever executed in the state of Illinois was under compulsion."

Marks said, "The fee was not agreed to."

Maddox said, "They had no right to any fee?"

Marks said, "I didn't say that."

Maddox said, "Are you saying they charged too much or that they should not have charged it? What is your point?"

Marks searched his files.

Maddox said, "Would it be different if it was ten dollars?"

Marks said, "Maybe."

Bozarth waved the payoff statement and said, "She didn't even see it so how could she feel compelled?"

Maddox told Marks and Bozarth she would read cases they cited, though she noted that cases from other states were a nuisance.

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