Many of the faithful readers of my missives should be well-acquainted with the antics of Judge Penguin, who has been my nemesis for many a case (He was the Judge on “Don’t be THAT Guy”, and also on “It’s Hard To Keep A Conspiracy Theorist Down.”). To be fair, Judge Penguin is a highly intelligent and a hard-working jurist, but quite simply, he has a judicial agenda, and is decidedly pro-debtor, regardless who that debtor is, regardless who the creditor is, and regardless what the financial condition of the debtor may be.
In 2004, we represented a private University, Gotham State, who was not paid tuition by one of their students, Helena Kyle. As is customary at Gotham, all students who enroll must have a parent guarantee the payment of tuition, room, and board, In this case, Selina Kyle was guarantor. All payments were deferred until after graduation. Helena attended Gotham, graduated in four years, without any specific honors, but without any negative marks, either. After graduation, she got a job at a local art-framing retail store. She lived in an apartment, and had virtually no assets. And of course, she stopped paying.
Our client retained local counsel in Gotham to obtain a judgment against both Helena and Selina for the non-payment of the tuition, room, and board. Selina brought a motion to vacate the judgment in Gotham, and the Gotham City Court categorically denied the motion, on the basis that she had absolutely no meritorious defense. (Apparently, Gotham not only supports vigilante justice, but also adheres to the law.)
Gotham then sent us the judgment to enforce, since Selina lived in New York. Despite the fact that Helena was an itinerant free-spirit, Hunting for purpose in life, Selina had set up roots. A place of employment was supplied to Gotham when Selina signed the guarantee, so we filed the income execution immediately. Selina was taking home well over $125,000.00 a year from her jewel heists and museum artif… um, from her job as a principal of a high school here in New York. Holy Wage Garnishment, Batman!
As soon as our income execution was in place, we started getting calls from Selina’s long lost son, Jonathan Crane. He tried to threaten us, instill fear that he would seek all remedies in and out of court, in order to get us to back down. Of course, ever vigilant, we did not. Armed with his minimal concept of the law, he filed a motion in New York, to vacate the judgment. Now, any other Judge would have thrown the motion out faster than the Flash can run from Coast City to Metropolis. But not Judge Penguin. Judge Penguin denied the motion to vacate the judgment, but using an antiquated statute (CPLR 5240) that empowers a court to stay proceedings, pending a review of the financial condition of a judgment debtor, Penguin thwarted any enforcement of the law against Selina Kyle. Holy Unjust Decision, Batman!
At the oral argument, I confronted Penguin with the documentation that Selina was taking home six figures, from her job, and didn’t even mention all the black market sales of Siamese cat statues with emeralds for eyes. Clearly, she not only had the capacity to make the payments, she had no basis for the court to exercise CPLR 5240. But Penguin, ever ready to stop me from doing my job, and doing justice, adjourned the oral argument, for a supplemental hearing.
At the supplemental hearing, Selina had retained an attorney, Solomon Grundy, who came to Court reeking of an odor akin to formaldehyde and wet dog, all the while leaving a trail of powder that looked like moldy sheet rock dust. Grundy argued that the guarantee was not valid, because we had not subpoenaed Helena to appear. I argued that it was irrelevant, confusing, and that he should step away from me, because his breath was toxic. Besides, Helena was probably out flying with birds in the wilderness. Inexplicably, Penguin bought Grundy’s argument, and told us to find Helena.
The next time the case was on, we found Helena. Apparently, she was living somewhere in the midwest as a carnival groupie. But I reiterated to the Court, here was Selina, collecting her hefty salary as a principal. Penguin instructed Grundy to compel Helena to come to Court.
Grundy couldn’t find Helena. And subsequently asked for an adjournment. Despite my objection, Penguin adjourned the completely-without-procedural-basis hearing, again. And again. And again. The reasons started becoming more ridiculous by the day. “My client can’t come to Court. She’s sick.” “We can’t find Helena, and are too mentally distraught to come to Court.” “Jonathan is on a road trip to Gotham to prove that Selina’s signature was forged.” “The Court date conflicts with our Legion of Doom meeting.” And each time, Penguin granted them the adjournment, each time. Holy Abuse of Discretion, Batman!
By this time, seventeen months had passed, and over eight adjournments. I had filed an appeal to the higher Court to get them to stop Penguin, and stop him for him. Contemporaneously, Selina and Grundy filed an Attorney General complaint against me for my “harassing actions.”
On the very next Court conference, Penguin called us into his igloo chamber, and attempted to broker a deal. We withdraw the appeal, Grundy call off the Attorney General, and Selina would pay $1000.00 a month, for fifteen months. We agreed. We agreed to something that should have been done, on the first Court date, nearly two years prior. We signed the stipulation, and the case was over.
Or so we thought. Jonathan sent a letter to our office the next week, demanding that we provide proof of every payment Gotham had ever received, because he was going to file a grievance against us, for converting Gotham’s funds. We ignored that, and Selina has been up to date with her installment payments. We haven’t heard from either of them, since.
But I haven’t seen the last of the Penguin.
For once, Tim kept the pop culture allegory to a single reference. Don’t get used it.
(Originally published in Debt3 Magazine, March 2011)