Appellate court: Judge erred when dismissing with prejudice bank's credit card debt collection lawsuit

By Jonathan Bilyk | Oct 19, 2015

A state appeals panel has overturned a trial judge’s decision to dismiss with prejudice a legal action to collect unpaid credit card debt, saying the trial judge erred in not granting a lender’s request to voluntarily withdraw the action.

On Oct. 16, a three-justice panel of the Illinois First District Appellate Court tossed out the ruling delivered by Cook County Associate Judge Israel A. Desierto, who had ruled in Nov. 2014 against Commerce Bank in the lender’s legal dispute with a borrower over a little less than $19,000 in credit card debt.

Commerce Bank had initiated the legal proceedings in late 2013 against the borrower, identified in the court documents as Alita M. Jones Richard, for failure to pay the debt. However, days before the matter was set to go to trial, the bank filed a motion to voluntarily dismiss the action without prejudice. According to the court documents, a notice of that motion was mailed to Richard on Nov. 13, 2014.

When the two sides next appeared in court – Commerce Bank represented by its attorneys, Blitt & Gaines P.C., of Wheeling, and Richard representing herself pro se – Richard claimed she had received no notice of the bank’s motion and indicated she was ready to proceed with the trial.

In response, the judge ruled Commerce Bank “had not acted in ‘good faith and with due diligence in pursuing this matter’ and its actions had “violated ‘issues of fundamental fairness’ and… granting Commerce’s motion would prejudice the defendant (Richard.)”

The judge then dismissed the bank’s motion with prejudice, effectively ending the action against Richard, pending appeal.

On appeal, a three-justice panel, in an unpublished order authored by Justice Thomas E. Hoffman, with justices Mary K. Rochford and Mathias W. Delort concurring, said the trial judge had made a mistake in denying Commerce Bank its motion to dismiss without prejudice.

“By its very terms, the statute ‘confers on plaintiffs an unfettered right to voluntarily dismiss their claims without prejudice, upon proper notice and payment of costs, at any time before trial or hearing begins,’” the justices wrote, citing precedent case Morrison v. Wagner.

Because notice was mailed to the borrower at least four days before the court appearance at which the motion was to be introduced, the judge should have granted the motion.

The case was remanded for further proceedings.

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Blitt & Gaines PC Illinois First District Appellate Court

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