Thul v. Onewest Bank, FSB d/b/a Indymac Mortgage Services
1:12-cv-06380
N.D. Ill.Jan 18, 2013Background
- Court directed defense counsel to show cause for sanctions over failure to cite a controlling Seventh Circuit decision (Wigod) in briefing.
- Fuchs, an associate, was later excused from the sanction show-cause order after the court found he was not the primary drafter and relied on senior partners.
- Beisner and Miller admitted responsibility, apologized, and their firm settled the case with plaintiffs, contributing to the settlement.
- Beisner and Miller argued Wigod was distinguishable; the court disagreed, stating Wigod directly controls the issues presented.
- The court held the conduct warranted sanctions as misconduct, but due to the settlement, apologies, and public record, imposed no further sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to cite Wigod constitutes sanctionable conduct | Wigod is directly adverse; must cite | Wigod distinguishable | No further sanctions beyond earlier remedy. |
| Whether Fuchs bears responsibility for the citation failure | Fuchs was principal drafter and aware of Wigod | Fuchs was not the drafter and not aware of Wigod | Show-cause vacated as to Fuchs. |
| Whether the court should impose further sanctions given settlement and apologies | misconduct warrants additional sanctions | settlement and apologies mitigate | No further sanctions imposed. |
Key Cases Cited
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012) (court rejected lender's reliance on contingent modification; held failure to cite dispositive authority improper.)
- Hill v. Norfolk & Western Ry., 814 F.2d 1192 (7th Cir. 1987) (unprofessional tactic of disregarding dispositive authority condemned.)
- Mannheim Video, Inc. v. County of Cook, 884 F.3d 1043 (7th Cir. 1989) (discusses similar improper omission of potentially dispositive authority.)
- Harlyn Sales Corp. Profit Sharing Plan v. Kemper Fin. Servs., Inc., 9 F.3d 1263 (7th Cir. 1993) (reputational impact of public orders in professional conduct.)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (standard to accept truth of allegations on motion to dismiss.)