Team Lakin could lose another class on summary judgment

By Steve Korris | May 4, 2006

Days after a Lakin Law Firm class action lawsuit remarkably bit the dust in Madison County Circuit Judge Nicholas Byron's court, another "manufactured" case aimed at the lending industry was targeted for the skids.

Troy Bozarth

Another one for the team

Days after a Lakin Law Firm class action lawsuit remarkably bit the dust in Madison County Circuit Judge Nicholas Byron's court, another "manufactured" case aimed at the lending industry was targeted for the skids.

At a hearing in Circuit Judge Don Weber's court April 27, attorney Troy Bozarth for National City Mortgage charged that a plaintiff did not even remember she had filed the lawsuit against his client.

"This was an attorney's case from the beginning," said Bozarth at the hearing on a motion for summary judgment. "The problem is they have a client."

Weber, who asked if the plaintiffs had been recruited, is taking National City Mortgage's motion for summary judgment under advisement.

Represented by the Lakin Law Firm, Donald and Patricia Agney accuse the lender of charging an unreasonable fee for faxes in refinancing their loan.

Ruling "in good conscience," on April 21 Byron granted summary judgment to defendant HomEq Servicing in a three-year-old suit over a day's interest on a mortgage. He rejected Lakin attorneys' definition of the word "until" dug up from a case in 1850.

Lakin attorney Steve Schweizer said his clients, the Agneys, signed off on the loan agreement under compulsion. He said the contract provided that the lender would not release the proceeds until the borrower paid the fees.

The defense imputed the broker's knowledge to plaintiffs, he argued.

"What they did on the payoff agreement was unlawful," said Schweizer.

Weber noted that the plaintiffs did not complain at the signing.

"Were they recruited?" Weber asked. "How did he get involved in the lawsuit?"

Schweizer said he joined the firm a year ago.

"We have a policy where we do not solicit class plaintiffs," he said.

He said attorneys may advise those who come to the firm.

"How they ended up with our firm I don't know," said Schweizer.

Bozarth said the genesis of the case against National City Mortgage was the Lakin firm filing suits about fees on loans.

He said attorney Tim Campbell told attorney Emert Wyss to look through loan closings at Centerre Title, a company Wyss owned. Neither Campbell nor Wyss are members of the Lakin firm.

On many Madison County class action lawsuits against lenders, however, multiple law firms and attorneys appear as plaintiff's counsel.

Wyss called the Agneys, according to Bozarth. He said it was peculiar that attorneys had personal information about the Agneys.

Weber said, "Stop there, because that is fairly serious. Is that in depositions?"

Bozarth said yes.

"We are dealing with manufactured litigation," said Bozarth.

Bozarth told Weber that Patricia Agney's deposition lasted 15 minutes. He said she did not know she filed a suit.

He said Donald Agney has better memory than his wife but in 1999, when they signed the loan, her mind worked better and she took care of everything.

He said it was improper to use diminished memory to create issues of fact.

Bozarth argued that a broker for the Agneys knew about the fax fee and the Agneys knew in many ways. He said the monthly payment coupon showed the fee.

Weber asked for the interest rate on the old mortgage and the new one. Bozarth said the old rate was 9.5 percent and the new rate was 8.49 percent.

In a similar suit from 2003, plaintiff Carmelita McLaughlin stated in a deposition that Wyss contacted her about a loan Centerre Title closed.

The defendant in that suit, Alliance Mortgage, moved for sanctions against plaintiff counsel for failure to join Centerre Title as a defendant.

Wyss filed a "fee renunciation letter" under seal.

Alliance moved to add Centerre Title as third party defendant, arguing that if anything went wrong at closing the title company should have caught it.

Circuit Judge Phillip Kardis added not only Centerre Title but Wyss personally as third party defendants. Later Kardis dismissed Wyss but not Centerre Title.

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