STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. CV-06-241 J"
ELIZABETH H. NrrTCHELL and JAMES E. MITCHELL,
Plaintiffs
v. ORDER ON MOTION
J.P. MORGAN CHASE BANK,
Defendant
This matter is before the court on defendant's motion to set aside default under
M.R. Civ. P. 55(c).
On October 6, 2006, plaintiffs, husband and wife, represented by attorney
husband, filed a complaint with the court regarding a credit transaction with defendant
issuer of a Visa credit card alleging violation of the Maine Unfair Trade Practices Act
and breach of contract. By certified mail delivered September 18, 2006, a copy of
complaint and summons was served on Anthony J. Horan, Secretary, J.P. Morgan Chase
Bank, N.A., 270 Park, 35 th Floor, New York, NY 10017. Certified mail receipt was filed
with the court October 6, 2006. On September 7, 2006, the complaint and summons was
served on the Secretary of State of the State of Maine for purposes of affecting service on
the J.P. Morgan Chase Bank. Return of service was filed with the court on October 6,
2006. Mr. Mitchell also represented to the court that a copy of the complaint had been
sent directly to the defendant.
On October 12, 2006, the plaintiffs filed application with the clerk for default
alleging return of service perfected on September 18, 2006, and the defendant failing to 2
appear or plead in the action. Entry of default was entered by the clerk on October 16,
2006.
By motion filed October 24, 2006, plaintiffs moved for judgment of default
asserting that while the account in question showed a credit of $1,194.81, the account
entry did not address the lawsuit and plaintiffs allege entitlement to attorney's fees
under the Unfair Trade Practices Act, 5 M.R.S.A. § 213(2). The plaintiffs sought
judgment in the amount of $4,469.45. Request for attorney's fees was supported by
filings of appropriate affidavits.
On November 17, 2006, the court entered judgment for the plaintiffs in the
amount of $4,469.45 plus interest representing attorney's fees and costs. The order
further provides that because plaintiffs received a reversal of finance charges after suit
was filed that no extra damages were awarded.
On December 11, 2006, defendant's counsel entered his appearance and a motion
to set aside default was filed. Defendant alleges a failure of lawful service of process in
the matter thereby establishing good cause for untimeliness of its answer as well as the
existence of a meritorious defense.
The court is satisfied that appropriate service of process was made in the matter.
Unfortunately, the defendant chooses to do business by separating the functions of its
bank between offices in different locations in the far reaches of the United States. There
has been no rebuttal of plaintiffs' assertion that conflicting arrangements for satisfying
the plaintiffs' demand were met. Accordingly, neither the insufficient service nor
meritorious defense has been presented to the court.
The matter of great concern to the defendant in its motion is the judgment for the
plaintiffs for attorney's fees. The underlying facts are that Elizabeth H. Mitchell is the
wife of James E. Mitchell and she is the primary user of the credit card even though 3
James E. Mitchell is on the account. Defendant asserts that plaintiffs cannot be entitled
to attorney's fees because he is acting pro se and the co-owner of the account is his
lawful VYife. Defendant argues that there should be no attorney's fees assessed in the
matter as there was no contract that provides for the awarding of attorney's fees and the
plaintiffs had no fair claim for a violation of the Maine Unfair Trade Practices Act.
Boiled down to its essentials, the circumstances are that plaintiffs routinely made
payments on their Visa account with defendant bank electronically transferring funds
from a local savings bank by way of computer. On a day in May of 2005, the local bank
was having line problems and, unbeknownst to the plaintiffs, the electronic transfer
from that bank to the defendant did not go through. Accordingly, plaintiffs were in
default on that payment. In the subsequent attempts by plaintiffs to explain and
negotiate a resolution to the problem, one office of the defendant bank in one part of the
country engaged in the process of negotiating a mechanism to resolve the deficiency
and restore the credit relationship. At the same time, another officer of the defendant
bank in another part of the country was attempting to place the credit transaction in
default, call the entire balance due with a penalty and otherwise enforce its rights under
the credit arrangements. As a result of this treatment, many months transpired without
resolution of the problem and ultimately resulted in plaintiffs paying the balance in full
absent the interest and penalties. From the perspective of the plaintiffs, the credit for
that interest and penalties was not made to the account until September 10, 2006,
although unknown to plaintiffs until October 16,2006.
This period from May of 2005 to September of 2006 without resolution in spite of
increasing communications from the plaintiffs to defendant is considered by the court
to be an unfair trade practice and the court is satisfied that, at least, statutorily, plaintiffs 4
are entitled to attorney's fees. The question is whether or not James E. Mitchell can
receive attorney's fees to the extent he represented himself as well as his wife.
The United States Supreme Court has made it clear that a pro se litigant who is
not a lawyer is not entitled to attorney's fees. In examining the question of whether a
lawyer who represents himself should be treated like other pro se litigants or like a
client who has had the benefit of the advice and advocacy of an independent attorney, it
concludes that awarding counsel fees under such circumstances "would create a
disincentive to employ counsel whenever such a plaintiff considered himself competent
to litigate on his own behalf. The statutory policy in furthering the successful
prosecution of meritorious claims is better served by a rule that creates an incentive to
retain counsel in every such case." Kay v. Ehrler, et al., 499 U.s. 432 (1991). This rule was
followed by the United States District Court for the District of Maine in Marcello v. State
of Maine, 238 F.R.D. 113 (2006). The United States District Court for the Northern
District of Georgia when presented with the question whether an attorney could
represent his child and receive statutory attorney's fees noted that parents and children
are distinct entities for purposes of that particular federal statute but further suggested
that the attorney operating in such a circumstance was just as responsible to the child in
compliance with the rules of professional conduct as he would be representing a
stranger. Mathew V. v. Dekalb County School System, 244 F. Supp. 2d 1331 (2003).
In the matter of Schneider v. Colegio De Abogados De Puerto Rico, 187 F.3d 30 (lst cir.
1999), an attorney represented himself and another attorney in a civil rights case before
the Puerto Rico Federal Court, the First Circuit Court of Appeals determined the
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STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. CV-06-241 J"
ELIZABETH H. NrrTCHELL and JAMES E. MITCHELL,
Plaintiffs
v. ORDER ON MOTION
J.P. MORGAN CHASE BANK,
Defendant
This matter is before the court on defendant's motion to set aside default under
M.R. Civ. P. 55(c).
On October 6, 2006, plaintiffs, husband and wife, represented by attorney
husband, filed a complaint with the court regarding a credit transaction with defendant
issuer of a Visa credit card alleging violation of the Maine Unfair Trade Practices Act
and breach of contract. By certified mail delivered September 18, 2006, a copy of
complaint and summons was served on Anthony J. Horan, Secretary, J.P. Morgan Chase
Bank, N.A., 270 Park, 35 th Floor, New York, NY 10017. Certified mail receipt was filed
with the court October 6, 2006. On September 7, 2006, the complaint and summons was
served on the Secretary of State of the State of Maine for purposes of affecting service on
the J.P. Morgan Chase Bank. Return of service was filed with the court on October 6,
2006. Mr. Mitchell also represented to the court that a copy of the complaint had been
sent directly to the defendant.
On October 12, 2006, the plaintiffs filed application with the clerk for default
alleging return of service perfected on September 18, 2006, and the defendant failing to 2
appear or plead in the action. Entry of default was entered by the clerk on October 16,
2006.
By motion filed October 24, 2006, plaintiffs moved for judgment of default
asserting that while the account in question showed a credit of $1,194.81, the account
entry did not address the lawsuit and plaintiffs allege entitlement to attorney's fees
under the Unfair Trade Practices Act, 5 M.R.S.A. § 213(2). The plaintiffs sought
judgment in the amount of $4,469.45. Request for attorney's fees was supported by
filings of appropriate affidavits.
On November 17, 2006, the court entered judgment for the plaintiffs in the
amount of $4,469.45 plus interest representing attorney's fees and costs. The order
further provides that because plaintiffs received a reversal of finance charges after suit
was filed that no extra damages were awarded.
On December 11, 2006, defendant's counsel entered his appearance and a motion
to set aside default was filed. Defendant alleges a failure of lawful service of process in
the matter thereby establishing good cause for untimeliness of its answer as well as the
existence of a meritorious defense.
The court is satisfied that appropriate service of process was made in the matter.
Unfortunately, the defendant chooses to do business by separating the functions of its
bank between offices in different locations in the far reaches of the United States. There
has been no rebuttal of plaintiffs' assertion that conflicting arrangements for satisfying
the plaintiffs' demand were met. Accordingly, neither the insufficient service nor
meritorious defense has been presented to the court.
The matter of great concern to the defendant in its motion is the judgment for the
plaintiffs for attorney's fees. The underlying facts are that Elizabeth H. Mitchell is the
wife of James E. Mitchell and she is the primary user of the credit card even though 3
James E. Mitchell is on the account. Defendant asserts that plaintiffs cannot be entitled
to attorney's fees because he is acting pro se and the co-owner of the account is his
lawful VYife. Defendant argues that there should be no attorney's fees assessed in the
matter as there was no contract that provides for the awarding of attorney's fees and the
plaintiffs had no fair claim for a violation of the Maine Unfair Trade Practices Act.
Boiled down to its essentials, the circumstances are that plaintiffs routinely made
payments on their Visa account with defendant bank electronically transferring funds
from a local savings bank by way of computer. On a day in May of 2005, the local bank
was having line problems and, unbeknownst to the plaintiffs, the electronic transfer
from that bank to the defendant did not go through. Accordingly, plaintiffs were in
default on that payment. In the subsequent attempts by plaintiffs to explain and
negotiate a resolution to the problem, one office of the defendant bank in one part of the
country engaged in the process of negotiating a mechanism to resolve the deficiency
and restore the credit relationship. At the same time, another officer of the defendant
bank in another part of the country was attempting to place the credit transaction in
default, call the entire balance due with a penalty and otherwise enforce its rights under
the credit arrangements. As a result of this treatment, many months transpired without
resolution of the problem and ultimately resulted in plaintiffs paying the balance in full
absent the interest and penalties. From the perspective of the plaintiffs, the credit for
that interest and penalties was not made to the account until September 10, 2006,
although unknown to plaintiffs until October 16,2006.
This period from May of 2005 to September of 2006 without resolution in spite of
increasing communications from the plaintiffs to defendant is considered by the court
to be an unfair trade practice and the court is satisfied that, at least, statutorily, plaintiffs 4
are entitled to attorney's fees. The question is whether or not James E. Mitchell can
receive attorney's fees to the extent he represented himself as well as his wife.
The United States Supreme Court has made it clear that a pro se litigant who is
not a lawyer is not entitled to attorney's fees. In examining the question of whether a
lawyer who represents himself should be treated like other pro se litigants or like a
client who has had the benefit of the advice and advocacy of an independent attorney, it
concludes that awarding counsel fees under such circumstances "would create a
disincentive to employ counsel whenever such a plaintiff considered himself competent
to litigate on his own behalf. The statutory policy in furthering the successful
prosecution of meritorious claims is better served by a rule that creates an incentive to
retain counsel in every such case." Kay v. Ehrler, et al., 499 U.s. 432 (1991). This rule was
followed by the United States District Court for the District of Maine in Marcello v. State
of Maine, 238 F.R.D. 113 (2006). The United States District Court for the Northern
District of Georgia when presented with the question whether an attorney could
represent his child and receive statutory attorney's fees noted that parents and children
are distinct entities for purposes of that particular federal statute but further suggested
that the attorney operating in such a circumstance was just as responsible to the child in
compliance with the rules of professional conduct as he would be representing a
stranger. Mathew V. v. Dekalb County School System, 244 F. Supp. 2d 1331 (2003).
In the matter of Schneider v. Colegio De Abogados De Puerto Rico, 187 F.3d 30 (lst cir.
1999), an attorney represented himself and another attorney in a civil rights case before
the Puerto Rico Federal Court, the First Circuit Court of Appeals determined the
prohibition as held in Kay v. Ehrler against awarding attorney's fees to an attorney pro
se litigant does not apply where the attorney is also representing another adult noting, 5
I/[t]he fees incurred by plaintiff are essentially the same whether or not Schneider was
also a plaintiff.1/ Schneider v. Colegio De Abogados De Puerto Rico, 187 F.3d at 32.
Elizabeth H. Mitchell was the primary debtor on the credit card. Even though
James E. Mitchell was representing himself to the extent he was a co-debtor, there is no
evidence that his activities representing Elizabeth H. Mitchell were greater or less than
if he had represented himself alone. Furthermore, notwithstanding the circumstance
where Elizabeth H. Mitchell is his wife, James E. Mitchell is subject to the same Bar
Rules of Professional Conduct and liability for professional negligence as if there was
no marital relationship.
For the reasons stated herein, the entry will be:
Defendant's motion to set aside default is DENIED; judgment for the plaintiffs in the amount of $4,469.45 plus interest as entered November 17, 2006, is SUSTAINED; the court DENIES attorney's fees for subsequent proceedings.
Dated: May 1 ,2007 ~- Donald H. Marden Justice, Superior Court ELIZABETH H MITCHELL - PLAINTIFF SUPERIOR COURT 227 CUSHNOC ROAD KENNEBEC, ss. VASSALBORO ME 04989 Docket No AUGSC-CV-2006-00241 Attorney for: ELIZABETH H MITCHELL JAMES E MITCHELL - RETAINED 10/06/2006 MITCHELL & DAVIS DOCKET RECORD 86 WINTHROP STREET AUGUSTA ME 04330
JAMES E MITCHELL - PLAINTIFF 277 CUSHNOC ROAD VASSALBORO ME 04989 Attorney for: JAMES E MITCHELL JAMES E MITCHELL - RETAINED 10/06/2006 MITCHELL & DAVIS 86 WINTHROP STREET AUGUSTA ME 04330
vs J P MORGAN CHASE BANK - DEFENDANT 2500 WEST FIELD DRIVE, ELGIN IL Attorney for: J P MORGAN CHASE BANK ALAN SHEPARD - RETAINED SHEPARD & READ 93 MAIN ST KENNEBUNK ME 04043
Filing Document: COMPLAINT Minor Case Type: UNFAIR TRADE PRACTICES Filing Date: 10/06/2006
Docket Events: 10/06/2006 FILING DOCUMENT - COMPLAINT FILED ON 10/06/2006
10/06/2006 Party(s): ELIZABETH H MITCHELL ATTORNEY - RETAINED ENTERED ON 10/06/2006 Plaintiff's Attorney: JAMES E MITCHELL
10/06/2006 Party(s): JAMES E MITCHELL ATTORNEY - RETAINED ENTERED ON 10/06/2006 Plaintiff's Attorney: JAMES E MITCHELL
10/06/2006 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 10/06/2006 Plaintiff's Attorney: JAMES E MITCHELL MAILED TO ATTY. OF RECORD.
10/06/2006 Party(s): J P MORGAN CHASE BANK SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 09/07/2006 ORIGINAL SUMMONS WITH RETURN SERVICE MADE UPON J.P. MORGAN CHASE BANK
10/13/2006 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL MOTION - AFFID & REQUEST DEFAULT/JUDG FILED ON 10/12/2006 Plaintiff's Attorney: JAMES E MITCHELL
Page 1 of 4 Printed on: 05/04/2007 AUGSC-CV-2006-00241 DOCKET RECORD
10/16/2006 Party(s): J P MORGAN CHASE BANK ORDER - DEFAULT ENTERED ON 10/16/2006 NANCY DESJARDIN, CLERK II DEFAULT ENTERED AGAINST J.P. MORGAN CHASE BANK. COPIES TO PARTIES/COUNSEL
11/21/2006 Party(s): ELIZABETH H MITCHELL MOTION - MOTION FOR DEFAULT JUDGMENT FILED ON 11/17/2006 DONALD H MARDEN , JUSTICE
11/21/2006 FINDING - JUDGMENT DETERMINATION ENTERED ON 11/17/2006 DONALD H MARDEN , JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL
ORDER - DEFAULT JUDGMENT ENTERED ON 11/17/2006 DONALD H MARDEN , JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL Judgment entered for ELIZABETH H MITCHELL, JAMES E MITCHELL and against J P MORGAN CHASE BANK in the amount of $4469.25.
11/21/2006 FINDING - FINAL JUDGMENT CASE CLOSED ON 11/21/2006
12/11/2006 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL WRIT - WRIT OF EXECUTION REQUESTED ON 12/11/2006 Plaintiff's Attorney: JAMES E MITCHELL
12/11/2006 Party(s): J P MORGAN CHASE BANK OTHER FILING - ENTRY OF APPEARANCE FILED ON 12/11/2006 Defendant's Attorney: ALAN SHEPARD
12/11/2006 Party(s): J P MORGAN CHASE BANK ATTORNEY - RETAINED ENTERED ON 12/11/2006 Defendant's Attorney: ALAN SHEPARD
12/11/2006 Party(s): J P MORGAN CHASE BANK MOTION - MOTION SET ASIDE/STRIKE DFAULT FILED ON 12/11/2006 Defendant's Attorney: ALAN SHEPARD WITH PROPOSED ORDER
12/26/2006 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL OTHER FILING - OPPOSING MEMORANDUM FILED ON 12/26/2006 Plaintiff's Attorney: JAMES E MITCHELL PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO SET ASIDE DEFAULT JUDGMENT
12/26/2006 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL OTHER FILING - AFFIDAVIT FILED ON 12/26/2006 Plaintiff's Attorney: JAMES E MITCHELL AFFIDAVIT OF JAMES E. MITCHELL, ESQ., WITH BILL
12/26/2006 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL Page 2 of 4 printed on: 05/04/2007 AUGSC-CV-2006-00241 DOCKET RECORD
OTHER FILING - AFFIDAVIT FILED ON 12/26/2006 plaintiff's Attorney: JAMES E MITCHELL AFFIDAVIT OF MEGAN C. HANLEY
02/08/2007 HEARING - MOTION SET ASIDE DEFAULT JUDG SCHEDULED FOR 03/09/2007 @ 9:00
03/09/2007 party(s): J P MORGAN CHASE BANK MOTION - MOTION TO CONTINUE FILED ON 03/09/2007 Defendant's Attorney: ALAN SHEPARD
03/09/2007 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 03/08/2007 Plaintiff's Attorney: JAMES E MITCHELL PLFS' REQUEST FOR ADMISSIONS OF FACT UNDER RULE 36, SERVED ON A. SHEPARD, ESQ. ON 03/07/07.
03/12/2007 party(s): J P MORGAN CHASE BANK MOTION - MOTION TO CONTINUE GRANTED ON 03/09/2007 DONALD H MARDEN , JUSTICE COPIES TO PARTIES/COUNSEL TO BE RESET APRIL 3, 2007 AT 9:00AM
03/27/2007 Party(s): ELIZABETH H MITCHELL,JAMES E MITCHELL OTHER FILING - REPLY MEMORANDUM FILED ON 03/27/2007 Plaintiff's Attorney: JAMES E MITCHELL IN SUPPORT OF LEGAL FEES
03/28/2007 Party(s): J P MORGAN CHASE BANK RESPONSIVE PLEADING - RESPONSE FILED ON 03/28/2007 Defendant's Attorney: ALAN SHEPARD
04/03/2007 HEARING - MOTION SET ASIDE/STRIKE DFAULT HELD ON 04/03/2007 DONALD H MARDEN , JUSTICE Defendant's Attorney: ALAN SHEPARD Plaintiff's Attorney: JAMES E MITCHELL
04/03/2007 Party(s): J P MORGAN CHASE BANK MOTION - MOTION SET ASIDE/STRIKE DFAULT UNDER ADVISEMENT ON 04/02/2007 DONALD H MARDEN , JUSTICE
05/04/2007 party(s): J P MORGAN CHASE BANK MOTION - MOTION SET ASIDE/STRIKE DFAULT DENIED ON 05/03/2007 DONALD H MARDEN , JUSTICE COPIES TO PARTIES/COUNSEL
05/04/2007 ORDER - COURT ORDER ENTERED ON 05/03/2007 DONALD H MARDEN , JUSTICE DEFENDANT'S MOITION TO SET ASIDE DEFAULT IS DENIED, JUDGMENT FOR THE PLAINTIFFS IN THE AMOUNT OF $4,469.45 PLUS INTEREST AS ENTERED NOVEMBER 17, 2006, IS SUSTAINED; THE COURT DENIES ATTORNEY'S FEES FOR SUBSEQUENT PROCEEDINGS.COPIES MAILED TO ATTYS. OF RECORD.
05/04/2007 ORDER - COURT ORDER COpy TO REPOSITORIES ON 05/04/2007
page 3 of 4 Printed on: 05/04/2007 AUGSC-CV-2006-00241 DOCKET RECORD
A TRUE COPY ATTEST: Clerk
Page 4 of 4 Printed on: 05/04/2007