Fifth offers little comfort to Lakin appeals, so far

Steve Korris Feb. 8, 2007, 3:35am

Judge Don Weber

MOUNT VERNON – Lakin Law Firm class action attorneys hope the Fifth District appellate court will restore the power of their practice.

In four appeals at the Fifth District, Lakin attorneys seek to overturn Madison County circuit court orders disposing of class actions.

As they try to reverse the losses they also try to protect gains in other cases, resisting appeals from businesses on the short end of Madison County orders.

So far Fifth District judges have not afforded the Lakin firm much comfort.

Last September they not only affirmed Circuit Judge Nicholas Byron in dismissing a Lakin class action, but they also expanded the reach of his order.

The Lakin firm has asked the Illinois Supreme Court to review the decision.

The plaintiff in that case, Erin Moody, sued Federal Express in 2002 for delivering a package a day late. She sought a $27.53 refund on a $41.31 bill.

Byron ruled in 2005 that the Airline Deregulation Act of 1978 preempted a claim of Lakin client Erin Moody against Federal Express.

The Lakin firm appealed, arguing that Byron committed an error on preemption.

A panel of three Fifth District judges did not even address preemption. In a decision last Sept. 13, they agreed that Moody sought a remedy outside her contract.

They held that under her contract she could have asked for a full refund.

Judge Stephen McGlynn wrote, "If Moody were allowed to pursue her retroactive partial refund four years after the delivery, the contractual provisions expressing and relating to FedEx's limit of liability and money-back guarantee would be rendered meaningless."

Last year Fifth District judges reversed Byron twice after he ruled in favor of Lakin class action clients in almost identical cases.

In one, Kenneth Kronemeyer complained that U.S. Bank charged $10 when persons without accounts at the bank cashed checks drawn on the bank.

In the other, Belinda Vardell complained about a $5 fee at Union Planters Bank.

They alleged wrongful dishonor under the Uniform Commercial Code.

The banks moved to dismiss, arguing that plaintiffs lacked standing because the Uniform Commercial Code applied to customers and they were not customers.

The banks also argued that the National Bank Act preempted the claims.

Byron denied the motions, but the banks prevailed at the Fifth District.

In each case three appellate judges sided with the banks on both standing and preemption.

Hair-splitting appeal

The distress of those defeats would disappear if the Fifth District would revive four Lakin class actions that Madison County judges threw out last year.

One appeal seeks to reverse former Circuit Judge Don Weber, who dismissed a suit that Jeffrey Hicks filed against United Parcel Service over late deliveries.

Hicks sought a $5 refund when he could have requested a $14.95 refund or credit under a money back guarantee.

Weber called the Lakin firm's position "legalistic arguments and hair splitting."

On appeal Gail Renshaw of the Lakin firm wrote that the money back guarantee was "a gratuitous promise defendants offer as a marketing tool."

For UPS, Troy Bozarth argued that Hicks sought a remedy that did not exist.

Bozarth wrote that UPS does not unconditionally promise delivery by a specified date and time, "nor could any carrier possibly do so."

He wrote that UPS guaranteed it would try to deliver on time or it would refund the entire charge on request within 15 days.

Renshaw wrote in a Jan. 29 response, "A promise is precisely what defendant is making and the question then becomes – if the promise is breached what are the remedies available to the customer?"

In another appeal the Lakin firm aims to reverse Weber in a check cashing case, Darryl Johnson v. First Banks.

Weber signed the order Nov. 14, after losing his bid for election to a full term.

He found that Johnson was not a customer, but Weber deplored the fee. He wrote that there should be a cause of action but that was not the law.

Shaw v. U.S. Bank

The Lakin firm has also appealed an order of Circuit Judge Daniel Stack, dismissing a class action that Robert Shaw filed against U.S. Bank.

Shaw claimed in 2004 that he paid $27 for recordation costs when closing a mortgage, but that the bank paid $19 and kept the other $8.

He also claimed the bank improperly charged $20 for a facsimile transmission.

Gary Peel signed the complaint. He left the Lakin firm last year after a federal grand jury indicted him on charges of bankruptcy fraud, obstruction of justice and possession of child pornography.

Last September Stack dismissed the suit after learning that the bank paid a vendor $10.50 to prepare documents for recordation.

To Stack, it looked like Shaw came out ahead by $2.50.

Stack also rejected the claim over the fax fee.

On appeal, Chicago attorney Phillip Bock argued for the Lakin plaintiff. Bock has added his name to most Lakin class action complaints.

Bock told the Fifth District the $10.50 fee was not a recordation fee. He wrote that the bank extracted the fee on a false pretense.

He wrote that Shaw had no choice but to pay the recordation fee and the fax fee.

For U.S. Bank, Daniel Dingerson of Chicago wrote in a Feb. 2 brief that the bank incurred greater costs on recordation than it charged to Shaw.

As for the fax, Dingerson suggested Shaw should have sued his settlement agent, Centerre Title.

"U.S. Bank did not charge Shaw a fax fee. U.S. Bank charged the settlement agent a fax fee," he wrote.

He wrote that if the settlement agent took $20 from the sale proceeds, the action was contrary to instructions in the payoff statement.

"If Shaw has any legal claim based on the payment of the fax fee, it is against Centerre who, according to Shaw, collected the fee from him…," Dingerson wrote.

Treadway v. Nations Credit

Another Lakin appeal seeks to reverse former Circuit Judge Lola Maddox, who dismissed a suit Gary Treadway filed against Nations Credit Financial Services.

Treadway claimed in 2005 that when his late mother borrowed money for a house, she paid $150 for an interest rate discount she never received.

Peel signed the complaint.

Although Lakin attorneys argued that they did not seek damages under federal usury law, Maddox thought they did. She ruled that usury law preempted the claim.

On appeal Bock argued that Maddox based her decision on "fundamental misunderstanding of the scope of federal preemption."

"If the trial court were right, it would mean national banks are free to breach their contracts and to lie to their customers with impunity," he wrote.

For Nations Credit, Lawerence Benjamin of Chicago replied, "There is nothing to fear from the appellant's bug-a-boo."

Benjamin wrote that there was no reason why Treadway could not seek relief under the National Bank Act.

He also called on the Fifth District to declare that the court already decided the issue by closing a separate case from the same mortgage.

Treadway sued Nations Credit in 2003 over a courier fee. Nations Credit won an order of summary judgment.

Benjamin wrote, "Illinois courts adhere, as a matter of public policy, to a general rule against the splitting of claims or causes of action."

"A plaintiff is not permitted to sue for part of a claim in one action and then sue for the remainder in another action," he wrote.

Chochorowski v. Home Depot

The Fifth District plans oral arguments on a Lakin class action against Home Depot on Feb. 8.

Plaintiff Janet Chochorowski claimed in 2002 that a Home Depot in Brentwood, Mo., improperly added a 10 percent damage waiver when she rented a tiller.

Home Depot asked Stack to declare Madison County an inconvenient forum. Home Depot proposed transfer to St. Louis County.

Stack denied the motion, and Home Depot appealed.

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