MOUNT VERNON – Citi Mortgage seeks Fifth District review of a class action Madison County Associate Judge Clarence Harrison certified over penalties for partial mortgage payments.

AAMG, a unit of Citi Mortgage, petitioned for leave to appeal on Aug. 19.

In July, Harrison certified borrower Cassandra Williams to represent a class claiming AAMG charged five percent of a monthly payment rather than five percent of the unpaid portion.

Harrison estimated the class in the thousands.

Williams sued over $18.49, so it would take about 54,000 equal claims to reach $1 million.

At a hearing in April, class action lawyer Stephen Tillery of St. Louis offered an example of a borrower with a $500 note who sends in $400.

"Our position is that the late charge must be calculated as five percent of one hundred dollars, that portion of the full monthly payment that is overdue," he said.

Harrison said, "Five dollars versus 25 dollars."

AAMG lawyer Sarah Wolff of Chicago said, "The definition of a payment is payment of the principal and interest due for the month."

Harrison asked if the argument was the same with regard to all class members, and Wolff said yes.

In his certification order he found that by definition, all class members had notes with identical late charge provisions.

"Also by definition, all members of plaintiff's proposed class submitted a timely partial payment on which AAMG assessed a late charge," he wrote.

He wrote that if Williams interprets the contract correctly, the class can recover under breach of contract or unjust enrichment.

"If plaintiff's contract interpretation is incorrect, plaintiff concedes that both theories necessarily fail and the lawsuit ends," he wrote.

Wolff and Robert Bassett of St. Louis filed the petition at the Fifth District.

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