Weber tests new substitution rule

By Steve Gonzalez | May 11, 2006

Paul Marks

Judge Weber

Three days after 3rd Circuit judges adopted a rule allowing only one substitution of judge as of right per side in class action cases, Madison County Circuit Judge Don Weber used it as a basis for a ruling in a case against National City Mortgage.

Donald and Patricia Agney filed a class action lawsuit in 2003, alleging the mortgage company charged them a $20 fax fee when they refinanced their home loan.

Representing the plaintiffs, Paul Marks of the Lakin Law Firm filed a motion on behalf of Patricia Agney for a change of judge from Weber on March 30.

On April 6, a hearing was conducted and Patricia's mental condition was raised and both sides agreed that it would prevent her from participating in the case.

In his order, Weber wrote, "At the hearing, Paul Marks further stated at the hearing that he had not even consulted with his client, Patricia Agney, with respect to the filing of the second motion for substitution of judge."

Her husband was granted a change of judge previously on Dec. 18, 2003.

At the hearing on April 6, Marks told Weber that each plaintiff is entitled to a substitution of judge as a matter of right under the statute.

Weber, disagreed and denied the motion, but allowed Marks to file a motion to reconsider.

In his order, Weber used the new rule that was adopted by the judges as a basis for denying the motion.

The new rule states that "the class shall be considered the party in a case."

Weber also wrote, "This court also finds that the multiple motions for substitution of judge sought in this class action case by multiple class representatives is being used to thwart the Chief Judge's assignment power and to infringe on the independence of the Chief Judge in assigning cases to judges."

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