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Attorney must pay credit card company

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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.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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