Faithful readers of my missives are probably pondering as to what tangential allegory to pop culture I am making with that title. Is it a play on the Michael Keaton film “Birdman”? The ostrich from the Donald Duck cartoons? Not today.
Today, I debut the newest adversary, the Ostrichman. The Ostrichman is the attorney who, despite being shown the very obvious errors, continues to stick his head in the sand, to ignore the glaring mistakes he has made.
We were retained by the Springfield Donut Company to sue one of the customers of who purchased donut making equipment. The personal guarantor, whom I shall refer to as “Moe,” who was the owner of a bar in New York City, “Moe’s Tavern”. Moe had agreed to purchase and finance donut making equipment, and only paid a few months of the installment payout before defaulting. Unfortunately, Moe’s Tavern went out of business. We contacted Moe, and he said he had no money, and that his bar went out of business. He told us to get a judgment against him, (in writing no less), and that it would be uncollectible, because he “had nothing”. We obtained a judgment, and sent an information subpoena to the credit reference he listed in the initial purchase agreement, Duff Beer. Lo and behold, while Moe’s may have gone out of business, he went to go work for Duff Beer.
We commenced a wage garnishment, and after about a year of payments, we received a Motion to Vacate the Judgment from Ostrichman. The Motion, with an affidavit signed by Moe, indicated the usual: “I was never served”, “I don’t owe this money” and “The charges on my credit card were fraudulent and unauthorized.”
Huh?
The rest of the affidavit went on to talk about how the Plaintiff, a credit card company, was charging excessive interest, failed to act on the objections to the fraudulent charges, and other completely inapplicable allegations, such as claims under the Telephone Consumer Protection Act, and Fair Debt Collection Practices Act.
I called up Ostrichman, and told him that I thought maybe he used the wrong form. He refused to listen. He told me “You collection agencies don’t do your due diligence.” I went on to explain that first, I was not from an agency but actually an attorney with a judgment, and secondly, my client was an equipment supplier, who sold goods on credit in a business transaction, and thus, his allegations were illogical.
Ostrichman stuck his head in the sand.
We went to Court shortly thereafter, and the Judge Apathetic actually cracked a smile, (for the first time ever!) And said “Ostrichman, if you don’t withdraw your motion, I’m sanctioning you.”
Ostrichman withdrew the motion, and to this day, the wage garnishment continues.
But I had not seen the last of Ostrichman.
Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York, and can be reached at twan@smithcarroad.com. Ostrichman has a sidekick, too. He’s “Stick-my-ears-in-my-fingers-and-scream-LALALA-Lad”. But that is a Tale for another day.
