Definition of 'until' gets defendant off class action hook

By Steve Korris | May 4, 2006

Founding father Thomas Lakin

Circuit Judge Nicholas Byron

Lakin attorney Richard Burke

Once upon a time a Lakin Law Firm attorney could stroll into the Madison County courthouse with a shadowy client or a 156-year-old word trick, and magically come out on top.

Those days have ended.

Paul Marks, who replaced Gary Peel as the Lakin firm's class action leader April 18, came out on the short end of two hearings in his first nine days.

Circuit Judge Nicholas Byron granted summary judgment April 21 to defendant HomEq Servicing in a three-year-old suit over a day's interest on a mortgage. Byron had dismissed the original defendant, Wachovia Corporation.

Byron rejected a definition of "until" that Marks dug up from a case in 1850.

At the end, Byron and Richard Burke of the Lakin firm squabbled like third graders.

Six days later, in another three-year-old mortgage suit, Circuit Judge Don Weber asked Marks and colleague Steve Schweizer if the firm recruited plaintiffs.

Schweizer said the firm has a policy against soliciting class plaintiffs.

In these cases and 51 others, Peel withdrew as attorney of record in April after leaving the Lakin firm. The firm gave 46 cases to Marks and seven to Burke.

Peel left the firm after federal grand jurors indicted him on charges of obstructing justice, bankruptcy fraud and possession of child pornography.

Until means…

At a hearing in Byron's court two weeks ago, defense attorneys successfully argued that "until" includes the date of reference.

But Marks and Burke, appearing together on behalf of proposed class representatives Thomas Hogle and Rebecca Hogle in a putative class action against HomEq, argued that "until" doesn't necessarily mean "through."

"Until means up to but not including," Marks argued.

Class plaintiffs alleged they were charged interest on the same day defendants received a payoff check. The case had not been certified.

HomEq attorney Jeffrey Pilgrim said his motion for summary judgment itemized the charges and set forth the interest calculation.

According to Defendant

Pilgrim said plaintiffs closed a loan Sept. 25, 2000, an agent sent a payoff check Sept. 28, and HomEq received it Oct. 4.

He said plaintiffs filed a complaint in May 2003 and never amended it. He said they claimed no less than $409.22 for 15 days of extra interest.

All amounts were proper and correct, HomEq did not charge 15 days of extra interest, and HomEq sent plaintiffs a $270.04 refund check, Pilgrim said.

Plaintiffs conceded these points and claimed only that HomEq should not have charged interest for the day it received the check, he said.

Quoting from the loan note, "Interest will be charged on unpaid principal until the full amount of principal has been paid," said Pilgrim.

"The full amount of principal was paid on October 4th, 2000, and defendant charged the plaintiff interest until that full amount was paid on October 4th."

He said plaintiff's response to the motion honed in on the word "until," arguing that it excluded the date it referred to.

"Plaintiff's argument is absolutely irrelevant here because the provision as you can see unambiguously does not refer to a date, a specific day," said Pilgrim.

"Beyond its lack of relevance here, the plaintiff's argument that 'until' excludes the thing it is referring to is simply wrong and is not consistent with the common use of the word.

"Tellingly, the case that they principally rely upon in their brief was decided in 1850."

He said, "If a party has until July 15th to file a brief with this court, they could obviously file it on July 15th."

He said, "If a student has until class, the event of class, to turn in an assignment, the student is clearly not required to turn it in on the day before class."

He quoted the Illinois Interest Act: "Interest may not be charged for any period of time occurring after the date on which the total indebtedness is paid."

"In other words, you can charge interest on the date of the payoff," said Pilgrim.

According to plaintiff

After presenting their arguments, Byron ruled that he could not "in good conscience" accept plaintiff's "until" argument.

Marks argued that HomEq held the principal on Oct. 4, 2000, yet still charged his clients interest for that day.

"Until doesn't necessarily mean through," Marks argued. "Until means up to but not including."

No cause of action

During the following exchanges, Byron reacts incredulously to plaintiff's definition of "until."

Byron: When was the interest actually paid?

Marks: October 4.

Byron: It wasn't charged on the 5th?

Marks: Correct.

Byron: It was charged on the 4th?

Marks: Correct, the date of payoff.

Byron: Your contention is, it should have gone back to the 3rd?

Marks: They don't get it for the day of payoff. That's my contention.

Marks said that "until" has an exclusionary meaning unless parties intend an inclusionary one. He said intent was not a matter suited for summary judgment.

Marks said he did not think the Illinois Interest Act applied and if it did, it would not necessarily mean HomEq did not breach the contract.

Byron asked if he had anything else. Marks did not, but Burke did.

Burke: This comes down to a single thing and that is: What is the proper interpretation of the word 'until' under this contract? We say until means up until.

Illinois has consistently held that until is exclusive of. So the cases are clear on that.

Byron asked Pilgrim if he was aware of their cases.

Pilgrim: I believe the case they are referring to is the 1850 case that I have referred to.

Burke cited Hecht v. Powell and said he would get it.

Byron: I am ready to rule. I think everybody knows my philosophy on commerce, consumer rights. I cannot in good conscience accept the plaintiff's argument – until.

I am going to hold that there is no cause of action here.

Burke found his case and asked if it mattered.

Byron: I am going to rule this way.

Burke: Okay.

Byron: You go ahead and appeal. Hey, if they come back with it –

Burke: They will.

Byron: You've got ten thousand cases sitting out there, because every bank goes on that basis.

Burke: I have no doubt they will bring it back.

Byron: Well then –

Burke: That's fine. If you make a call you make a call.

Byron: When you say until –

Burke: That's fine.

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