Tossing time records 'fatal' to mortgage originator's wage complaint, appeals court says

By Karen Kidd | May 5, 2017

CHICAGO — A mortgage originator tanked his own wage claim against his former employer when he threw away his time records, an Illinois appeals panel has said.

A three-justice panel of the Illinois First District Appellate Court affirmed a circuit court ruling that granted the defense motion for a judgment in its favor after the plaintiff, mortgage loan originator Ronald Evans, failed to present enough evidence to support his claim, according to court documents. Justice Aurelia Pucinski wrote the order, with concurrence from Justice James G. Fitzgerald Smith and Justice Terrence J. Lavin.

The appellate court filing was an unpublished order issued under Supreme Court Rule 23, which limits use of the court's filing as precedent

Evans claimed his former employer, Newcastle Home Loans, hadn't paid him for all of the hours he'd worked. However, he admitted he'd also discarded his time records. Corroboration helps a plaintiff in building a case, especially since the burden of proof lies with the plaintiff, Justice Pucinski wrote in the court's order handed down April 19.

"Here, the circuit court expressly found that Evans’ general estimates were not sufficient, standing alone, to satisfy his burden of proof, and that the lack of corroborating evidence was fatal to his claim," Pucinski wrote. "Given the record, the circuit court’s conclusion that Evans failed to satisfy his burden of proof cannot be deemed unreasonable, arbitrary, or not based on the evidence."

Evans sought unpaid wages and commissions he says he earned, unpaid overtime, monetary damages, liquidated damages, declaratory and injunctive relief. Evans claimed Newcastle Home Loans failed to pay him and other loan officers for actual hours worked and overtime compensation, which violated provisions of the Illinois Wage Payment and Collection Act and the Illinois Minimum Wage Law.

Evans initially filed his case as a putative class action, seeking to represent other similarly situated employees, but it eventually went forward with Evans as the only named plaintiff.

At trial, Evans testified that he worked as a loan originator for Newcastle and various other mortgage companies, including Patriot Financial and Countrywide Home Loans, working “probably about 55 hours” per week. Evans testified he worked from home and otherwise remotely, including while he was on a cruise in Mexico, at times tracking his work hours on a calendar, which he eventually discarded.

When Evans rested his case, Newcastle's counsel moved for a directed finding in favor of the defense, which the circuit court granted, stating Evans had not presented enough corroborating evidence. Evans appealed, arguing that the circuit court erred in granting Newcastle’s motion and that his testimony about his hours worked was uncontradicted.  

In its order, the appellate court said the circuit court had weighed the evidence, including the lack of corroborating evidence from Evans. 

"Given the circuit court’s analysis and its express rationale when granting Newcastle’s motion for a judgment in its favor, it is evident that the court reached the second-prong of the analysis and accordingly, the manifest weight of the evidence standard applies," Pucinski wrote in the order.

Evans is represented in the action by attorneys with the firm of Touhy Touhy & Buehler LLP, of Chicago. 

Newcastle is defended by attorney Bert Zaczek, of Chicago. 

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Illinois First District Appellate Court Touhy, Touhy & Buehler, LLP

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