As my experience in the law increased along with my brash cockiness, we had a simple run-of-the-mill matter.  The client? An out-of-state debt-buyer, who purchased a delinquent credit card account. The debtor?  A single mother of five children, ranging from middle-teens to infancy, who is unemployed, and whose ex-husband is incarcerated.

To our joy (and quite likely, to your jealousy), our client was able to provide us with the signature on a credit application, account agreement, and every single statement sent to the Defendant, indicating the date and vendor for each and every credit card charge for this $15,000.00 debt. (I know, you’re all simply amazed that we had that kind of back-up.)

In any event, standard operating procedure with that kind of documentation is to bring a Motion for Summary Judgment. In New York, and in especially the Civil Courts, Summary Judgment motions, shortly after the filing of a pro se Answer are commonplace. (The Civil Courts often have over a hundred motions on the calendar on any given day.)  The Civil Courts of New York also mandate appearance for an oral argument on any and all motions.

So, there I was, for my 9:30 AM calendar call. Motion on my lap, and magazine in my briefcase. Yep, I planned ahead. The Clerk called the case at approximately 9:45 AM. Amid the sound of crying children, in this vast room with poorer acoustics than a high school gymnasium, I heard a disembodied voice holler, “Present!”   The matter was accordingly marked ready for argument.  Two hours and fifteen minutes later, a good two hours and six minutes after I finished my magazine, the case was called up to the Judge for argument.  Turns out, those crying children belong to my Defendant. I approached the bench for the argument, and here came the Defendant, with each of her five kids in tow, with her one in her arms, and the eldest pushing a stroller.

Amid the children’s crying, the Judge reviewed the papers. She flipped through my fairly voluminous motion, stacked with plastic-tabbed exhibits, chock-full of duly Shepardized case law proving an Account Stated, and a nifty little legalback.  She read the Defendant’s letter, hand-written on yellow-lined paper, (that wide-lined, made-from-recycled-pulp kind that elementary schools use to teach penmanship) which plead the sole defenses of “Medicaid, food stamps, and welfare.” As she looked at it, the Defendant continued to mutter, of how her ex-husband is in jail, leaving her with these five kids, and how she is on welfare, can’t make her ends meet, and has been unemployed for as long as she can remember.

The Judge looked up at me with an offended look on her face. “How can you do this?”

“Excuse me, Judge?” I replied, befuddlement abounding. Did I forget to annex an Exhibit? Was the Affidavit of Service unsigned? Was there some other procedural defect that I unaware of?

“Counselor, this woman is on food stamps, Medicaid, and public assistance. She clearly doesn’t have the ability to pay this debt.”

“Um… Your honor, financial difficulty doesn’t create an issue of fact..”

The Judge sighed with exasperation. “Counselor, what kind of man are you?”

“Excuse me, Your Honor?” (Asking this a second time is probably never a good thing.)

“How can you pursue this woman, counselor? What kind of man are you?”

Now, I realized where she was going with this. But I wasn’t going to give in.

“Judge, if I may direct your attention to Exhibit ‘C’ . The statement there shows the Defendant’s charges. Three thousand dollars to J&R Music World. Four thousand at Circuit City. Five hundred from LL Bean. Eight hundred dollars at Abercrombie & Fitch. Judge, *I* don’t even shop at Abercrombie & Fitch!”

With a look of horror on her face, akin to one that I would expect if I turned around and mooned her, the Judge exclaimed, “Motion denied! Errr… Issues of fact exist!”

When I returned to my car, I called the client, eager to get their approval to appeal the case, and show the Judge that I wasn’t going to accept this defeat. Unfortunately, all too often, the Law of Diminishing Returns rears its ugly, reality-stricken, head.  Considering the Defendant truly was on public assistance, Medicaid, food stamps, and had no job, it simply would not be cost-effective to spend the money to appeal the Judge’s (albeit blatantly erroneous) decision, just to obtain an uncollectible judgment that would look very nice on my wall, along with the other few hundred thousand that we have.

I realize that I jumpstarted the Judge’s ire, with my exclamation. Lesson learned. Apparently, talking about your fashion sense with a Judge from the Civil Court, is an issue of fact.

Timothy Wan

(Originally published in Debt3 Magazine, January 2008)