ILNews

Attorney must pay credit card company

Back to TopCommentsE-mailPrintBookmark and Share

An Illinois attorney has lost his appeal in his fight against a credit card company seeking to collect money owed on a Discover card.

Max Bonecutter, who is a member of the Illinois bar, but not Indiana’s bar, challenged a small claims judgment entered of $4,569.17 and court costs in favor of Discover Bank in LaPorte Superior Court. Bonecutter had fought the claim and moved to dismiss it. He did not respond to multiple requests for discovery from Discover for more than a year. The case eventually went to trial after denying motions for summary judgment by both parties, and the trial court granted judgment in favor of Discover and against Bonecutter.

In Max H. Bonecutter v. Discover Bank, No. 46A04-1009-SC-598, Bonecutter made three arguments to the Indiana Court of Appeals – that the court erred in denying his motion to dismiss under Indiana Trial Rule 41(E) for failure to prosecute; the evidence was insufficient to show the formation or breach of an agreement; and his due process rights were violated.

Bonecutter claimed that Discover’s attorney didn’t take any action in the case for more than a year, so the matter should have been dismissed. But there’s no history of an egregious pattern of deliberate delay on the part of Discover, and Bonecutter didn’t ask for the trial court’s assistance in resolving the matter before filing his motion to dismiss.

“Further, dismissal under the circumstances would run counter to Indiana’s oft-stated policy of having cases decided on their merits whenever possible. The record does not show that the requirements for dismissal for failure to prosecute as set forth in Rule 41(E) were satisfied,” wrote Judge Elaine Brown.

Bonecutter argued that he couldn’t determine if it was his signature on the application document because Discover provided only a copy of it, and that even if a contract existed, the company didn’t prove he breached an obligation under the contract. But Discover provided sufficient evidence for the small claims court to find that an agreement existed between Bonecutter and Discover pursuant to which Bonecutter was required to make certain payments to Discover under the terms of the cardmember agreement, and he didn’t make those payments, wrote the judge.

Finally, the appellate court found that Bonecutter’s due process rights weren’t violated. He argued that they were because he didn’t receive proper notice or a fair hearing before an impartial tribunal. He claimed that the court assisted Discover’s attorney “to conduct a kangaroo court” where the attorney tried to wring admissions from Bonecutter and treated the attorney as a court employee and allowed him to engage in ex parte communications.

The record reflects that the trial court provided Bonecutter with numerous opportunities to produce discovery and present defenses before the court. He didn’t show how he was prejudiced by any procedural error with respect to the initial notice of claim or any other alleged due process error, the court found.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

  2. ?????????? ???? ?????? ??? ?????? ???????! ??????? ??? ??? ?? ???????? ???? ?????? ????????? ??? ??????? ????? ??????? ? ????? ?? ??????, ?? ???????, ?? ???????, ?? ??????, ?? ???? ? ?? ????? ??????? ??? ????? ??????. ???? ???????? ????????????? ??? ??????? ?????? - ??? ?? ????? ?????? ????????. ???????? ????? ????? ???????, ?????????? ????????? ????????, ????????? >>>> ?????? ????? http://xurl.es/PR0DAWEZ

  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

ADVERTISEMENT