Appellate Court upholds Weber's only decision in favor of Lakin

Steve Korris Apr. 18, 2007, 2:00pm

Don Weber

Appellate judges affirmed the only decision former Madison County Circuit Judge Don Weber rendered in favor of the Lakin Law Firm.

Fifth District judges on March 28 backed Weber in ruling that lender RBMG cannot compel a Lakin class action client to arbitrate a $25 dispute.

Weber denied RBMG's motion to compel arbitration last May.

A few weeks earlier, Lakin attorneys had tried to kick Weber off all their cases by accusing him of bias against the firm.

Chief Justice Edward Ferguson cleared Weber of bias, but few Lakin cases ever reached Weber.

The firm exercised an automatic right of substitution in many cases.

In Illinois any party can move once for substitution without cause, if a judge has not made a substantial ruling.

In the RBMG case the Lakin firm had already substituted a judge, so the firm had to face Weber.

Lakin client Cynthia Brown of Alton sued RBMG in 2003, claiming it charged a $25 fee for a courier service that did not cost that much.

RBMG sought to enforce an arbitration rider in Brown's contract.

Lakin attorneys argued that a court could not enforce the rider because dates on loan closing documents did not match.

Weber found the rider unenforceable. He denied RBMG's motion.

RBMG appealed.

At the Fifth District, all three judges on the case agreed with Weber.

Justice Melissa Chapman wrote, "Arbitration is grounded in contract law, and unless a party has agreed to arbitrate, then a court cannot force that party to participate in an arbitration process."

She wrote, "…the rider referred to a mortgage and note not in existence as of the date the rider was executed.

"BBMG maintains that this Court can fill in the missing terms because the parties' intentions were unambiguous.

"The rider is clearly and expressly worded with the expectation that the execution of the underlying loan and mortgage would be contemporaneous.

"We are not inferring that the mortgage and note terms were inserted with an improper motive in this situation, but to accept RBMG's theory in this case would certainly open the door to that practice."

Justices James Donovan and Bruce Stewart concurred.

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