Byron's definition of 'until' upheld by appellate court

Steve Korris Jun. 20, 2008, 6:40am


MOUNT VERNON – Madison County Circuit Judge Nicholas Byron correctly shut down a Lakin Law Firm class action over a day's interest on a home loan, the Fifth District appeals court ruled June 5.

Three Justices affirmed Byron's judgment in rejecting a bid by the Lakin firm to create a new definition of "until."

The Lakins maintained that a mortgage note allowing a lender to charge interest until borrowers paid it off excluded the date of the

"We agree with defendant that the problem with plaintiffs' argument is that the word 'until' as used in the note does not refer to a date but refers to a moment when the full amount of the principal has been paid," wrote Justice Richard Goldenhersh.

He wrote that "under the plain and unambiguous terms of the note, defendant was allowed to charge interest for the day the payoff was received."

The Lakins adopted "until" as a theory after their original theory fell through.

In 2003, when they filed the suit, they claimed HomEq owed a refund to borrowers Thomas Hogle and Rebecca Hogle for up to 15 days of interest.

HomEq produced proof that it issued a $274.08 refund check and the Hogles cashed it.

That didn't deter the Lakins, who simply reduced their claim from 15 days of interest to a single day.

HomEq moved for summary judgment, which Byron granted at a hearing in 2006.

"I cannot in good conscience accept the plaintiff's argument," Byron said.

"I am going to hold that there is no cause of action here," he said.

On appeal, the Lakins advanced three theories in addition to "until."

They argued that HomEq violated guidelines of the old Federal National Mortgage Association, or "Fannie Mae," that HomEq unlawfully calculated interest on a 360 day year, and that Byron relied on a law the Illinois Legislature repealed 47 years ago.

Goldenhersh wrote that the Hogles' loan was not obtained through Fannie Mae nor connected to it in any way.

"Thus, the Fannie Mae guidelines are irrelevant and inapplicable," he wrote.

He wrote that a 360 day year did not breach terms of the mortgage.

He wrote that Byron's references to a repealed law were not the basis for his order.

"The trial court clearly relied on the entire record before it, including the written submissions of the parties and the arguments raised on both sides of the issue, not a law repealed in 1961," Goldenhersh wrote.

Justices Melissa Chapman and James Donovan concurred.

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