Sometimes A Little Bit of Knowledge Is a Lot Dangerous

Almost anyone who does retail collection litigation has that infamous epic horror story where the twenty-five percent contingency fee was eaten up the millisecond that litigation was commenced. Or in some cases, the prospective fee is devoured pre-suit. I, of course, have more of these than I can store in my long-term memory. Here’s one such Tale from the Front!

We represent a fairly well known national bank, for which, I shall use the pseudonym, Goliath National Bank (No offense to Barney Stinson.)  With the monthly statement, account holders of Goliath credit cards typically receive a page of blank checks, which could be drawn to any denomination, up to the credit limit.  In any event, one particular debtor, who I shall refer to as as… Mr. Boris Badenov, apparently signed one of these checks in the seemingly arbitrary sum of $3,677.55, and made it out to himself.

Goliath referred us the case, no differently than any others. As standard operating procedure, we sent our demand letter signed by my senior partner. Three days later, (a speed that would make Newman cringe and Cliff Clavin jealous), we received a very neatly typed, multi-page letter signed by Mr. Badenov, citing the FDCPA, (in handy dandy block quotes) and demanding verification of the debt, stating that he wanted to reach an “amicable resolution”. (Ah, the words that tease us like an empty bottle of milk to a starving baby.) Armed with the account agreement, the endorsed check made out to himself, and the account statement, and not even needing to crack my trust copy of the FDCPA, since I knew we had everything we needed (luckily, this was not a purchased debt case), I forwarded the documents to him with all speed.

The very next day, I received an unusual demand for discovery from Boris. I knew he couldn’t have possibly gotten the documents yet. However, despite the fact that no action had yet been commenced, here it was, a formal demand, which, among other things, demanded a copy of our retainer agreement with Goliath, as well as a demand for my senior partner’s attorney registration number, home address, social security number, and date of birth. (Mr. Badenov could have thought we might be interested in purchasing a bridge, as well.) Obviously reticent to respond to such a ridiculous piece of paper, we recommended that the Goliath commence suit. To which, they agreed.

We started suit, and lickety split, we were served with another discovery demand, this time, addressed to me, asking for, my registration number, home address, social security number, and date of birth. The very next day, we received a letter rejecting the documents we previously forwarded, demanding that the originals be mailed to Mr. Badenov, so that he could inspect them. Then, the next day, we received a letter telling us to cease and desist from proceeding, stating that the verification of documents was fraudulent. All the letters were very nicely typed, each one signed by Boris Badenov, and each one promptly ignored by me. I had this image in my head of a tiny little man, mwa-ha-ha-ing, as he fired off a new missive each day, designed solely to perplex. But since at that time, we had already commenced suit, and service was imminent, if not yet already effectuated, I knew that we didn’t need to respond.

About that time, the client called. They asked what we were doing with the case, and for the first time, we found out that the Defendant had sent a subpoena to them, asking for their retainer agreement with my firm. They also said that he had furnished his employment information, and he was, in fact, a second year law student at a local New York law school.

A week later, we received a letter from Boris, asking for a payoff amount, affirming that he would “make good” on the debt, if we supplied him an accurate amount, to the penny, with interest. We prepared the letter, and sent it to him. Three days later, one day before Boris’s time to interpose an Answer was to be served, we received an Order to Show Cause to Dismiss the Action for, (ready for this?) a frivolous action!  Irate, I decided to leave it until tomorrow, before doing any opposition. And it was a good thing I waited. The next day, we got a Verified Answer, containing a “General Denial”, and a Counterclaim for $10,000,000.00, for “Groundless and frivolous complaint, harassment, abuse of process, and malicious prosecution.”.

I prepared opposition to the Defendant’s motion, and appeared in Court for oral argument. When we got there, I saw a tiny man in his mid twenties, dressed in a suit.  The clerk called the case.

“Goliath versus Badenov.”
“Plaintiff ready for oral argument”, I replied.
Badenov stood up. He paused for an uncomfortable period.
“No English. Need Russian interpreter.”

Yes, at that moment, I turned into Popeye, when Bluto hid his spinach. Apparently, Boris forgot how to speak English.

Three hours later, a Russian interpreter appeared, and we argued the case. The Judge summarily denied the Defendant’s Motion. Victorious, I returned to my office, to prepare a Motion to Dismiss the Counterclaim, and for Summary Judgment. I prepared the appropriate documents, and sent them to Goliath. No more than two days passed, when I received a Notice of Appeal. Apparently, Boris now remembered how to communicate in English, and was appealing the decision which denied his motion.

Nevertheless, I brought my Motion, and an associate attorney in my office appeared in Court for the oral argument. Boris appeared, but this time, seemed to still have his knowledge of English, and did not ask for an interpreter. After the argument, the Court found that there was absolutely no basis for the counterclaim, and that Mr. Badenov, has no defense to the action.

Erroneously thinking that I would be free to enter judgment, I began receiving a deluge of papers from Boris Badenov, that procedurally fall into no legal, statutory, or common law category. A “Request for Verification” once again asking for a whole lot of my personal information. I was surprised he didn’t start asking me for my shoe size, inseam, or collar circumference.  We also received a document asking about my associate’s credentials, including whether she was an American citizen, and whether she was indeed an attorney. We also got another Notice of Appeal of the Summary Judgment decision, and a Motion to Reargue.

We obviously opposed the Motion to Reargue. At the oral argument for that date, despite Boris asking for a Russian interpreter (apparently, knowledge of English was akin to Guy Pearce from the movie “Memento”), the Court denied his request, and directed the Motion to the original Judge, who promptly denied the Motion. We then received a third notice of appeal. Boris then brought a Motion to Disqualify the Judge, as biased. This was clearly denied. And lo and behold, a Notice of Appeal.

To make a long story short, (too late), Mr. Badenov appeared at every appeal, and perfected each of them. He tried to proffer new arguments, beyond the conclusory, insufficient ones he had raised before. This time, he argued that he never had a Goliath account, as his name was not “Badenov” but was “Badenoff”. He also argued that Goliath never produced a handwriting expert to prove that the signature was his, and that we never produced the original documents, so he didn’t know if they existed, or were forged. The Court summarily denied all the appeals, and warned Boris that if he tried any other motions or appeals, then he would be sanctioned.

Apparently dissatisfied, clearly exasperated, and surely crying out “Raskolnikov!” Mr. Badenov brought a plenary action against Goliath, and subpoenaed my firm as a witness. Goliath’s in house counsel brought a Motion to Dismiss, which was granted. Mr. Badenov then filed a, you guessed it, Notice of Appeal.

We attempted to enforce the judgment, and located a whole host of bank accounts. One, in the name of Boris Badenov, with a whopping $7.44 in it. We found a series of bank accounts owned by Boris Karamazov, with the same social security number. We located joint bank accounts with Natasha Fatale, which had been after the commencement of suit, but before we obtained judgment. We even found accounts held by Ivan Petrovitch Voinitsky and Michail Lvovich Astroff! But alas, that was it. We even searched the local law schools records, and apparently, Mr. Badenov did not graduate. It seems that while he had enough knowledge to make life difficult for us, he didn’t have enough to pass his classes.

I never heard what happened from that Appeal, as we were not retained as counsel.  But last week, while I was researching some case law, regarding the standards of a motion to reargue, I located a case of Mr. Boris Badenov versus the Bank of Pottsylvania. Nosily, I searched for all cases with Mr. Badenov as a litigant, and counted, no less than eleven appeals, only four of which were the ones I was involved with.

(Timothy Wan really really needs to watch less television.)

(Originally published in Debt3 Magazine, November 2008)