Weber finally will hear motion to dismiss $5 check fee case

Steve Korris Oct. 4, 2006, 3:51pm

Attorney Troy Bozarth

Two and a half months after a Lakin Law Firm client sued First Banks over a $5 check cashing fee, First Banks moved to dismiss.

Two and a half years later, First Banks at last can bring the motion to a hearing.

After many delays, Madison County Circuit Judge Don Weber has set an Oct. 26 hearing on the motion to dismiss.

The Lakin firm filed the suit March 9, 2004, for Darryl Johnson of Collinsville.

Gail Renshaw of the Lakin firm complained that Johnson paid $5 each time he cashed a check drawn on First Banks, because he had no account there.

Renshaw claimed that by charging a fee the bank wrongfully dishonored the check.

She moved to certify a class action, with Johnson representing thousands who had paid the fee in the United States.

For First Banks, attorney Troy Bozarth moved to dismiss May 21, 2004.

Bozarth wrote to Circuit Judge Phillip Kardis that Johnson lacked standing to sue because he was not a customer.

Bozarth wrote that Johnson had no claim because he paid voluntarily.

In response on July 22, 2004, Paul Marks of the Lakin Firm proposed an amended complaint and asked Kardis for leave to file it.

He argued that Johnson had standing as a customer. He wrote that wrongful dishonor depended on a contract not yet discovered.

He wrote that he would amend the complaint.

Bozarth, in reply on Aug. 12, 2004, protested that Marks put forth a new theory totally different from the complaint.

Five months passed before Marks finished amending the complaint. He moved for leave to amend it Jan. 14, 2005. Kardis granted it 17 days later.

The new complaint added a claim that the fee did not relate to any cost at the bank, and it defined the fee as a penalty.

Where the old complaint claimed Johnson paid unwillingly, the new one claimed he paid unwillingly "as a condition precedent to defendant's honoring of the checks as presented."

Where the old complaint claimed the bank charged every person without an account, the new one claimed it regularly charged persons.

To replace a four page class certification motion that Renshaw filed with her complaint, Marks offered 11 pages.

Where Renshaw recommended class action treatment under similar laws of other states, Marks recommended it under comparable laws of other states.

Bozarth moved to dismiss March 14, 2005. He countered the new theory by relying on rules of the Comptroller of the Currency.

Marks advised Kardis in reply on May 12, 2005, that the Comptroller's rules were arbitrary and capricious.

Marks wrote, "Faced with the possible deprivation of timely payment on his check, he was compelled to submit to paying the Bank's fee."

He argued that the bank put Johnson in a "heightened level of duress."

Bozarth replied June 16, 2005, that Johnson alleged no injury to his person, business or property because had he not paid.

He wrote that Johnson could have opened an account.

He wrote, "This fee compensated First Banks both for providing this service and for assuming the risk of making cash readily available to Johnson."

In June 2005 Bozarth asked for a hearing on the motion to dismiss.

Kardis set it Sept. 29, but he retired before then and his cases passed to Weber.

Transition from Kardis to Weber alarmed the Lakin attorneys. They decided to kick him off all the cases they had brought before Kardis.

They did it gently at first, exercising a right of automatic substitution.

In Illinois any party can substitute a judge once without cause, if the judge has made no substantial ruling.

The law left Weber no choice but to sign substitution orders that put him out of business, right at the outset of a judicial election campaign he had planned to win.

In some cases, however, the Lakin firm had already used the free substitution – usually to get rid of Circuit Judge George Moran.

To remove Weber for cause in these cases, they would have to accuse him of bias and prove it to Chief Judge Edward Ferguson.

They accused, and on March 27 Ferguson held a hearing on the charge.

On March 29 Ferguson denied substitution and pronounced Weber a fair judge.

Weber set the Johnson suit for management conference April 26.

At the conference, Bozarth and Marks agreed to appear before Weber for another management conference in a few months.

When they met again Sept. 28, Weber set the motion to dismiss for Oct. 26.

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