the yms times - Commercial Law League Of America

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THE YMS TIMES
Fall 2008
A QUICK LOOK AT WHAT’S IN THIS ISSUE
Page 2
Greetings From the Chair
by Julie Rausch
Go Placidly
by Brian W. Donnelly
Page 4
Does My Collection Practice Need a
Dedicated Marketer?
by Chad Pedersen
Page 5
Going To Trial Without a Witness and Winning!
by Matthew J. Richburg
Page 6
To Arbitrate or Not to Arbitrate? That Is
The Question!
by John D. Guerrini
Page 7
The Rhythm of Life
by Gary Tier
Page 8
Tales From The Front
by Timothy Wan
Page 10
Who’s Who In The YMS
YMS “Meet & Greet”
Thursday, November 13, 2008
11:00 PM
Faces & Names
at 159 West 54th Street
(between 6th and 7th Avenues)
Come join us for a drink, or a bite to eat at an
informal gathering of YMS members (and of
course, other CLLA members). It’s a cash bar,
but this bar has great drinks, and good bar
food, and is located 1 block North, and 1 block
East from the Sheraton. All are welcome!
Don’t Have Dinner Plans Friday Night?
Please join the YMS Officers and Executive Council for dinner on
Friday evening, November 14, 2008 at 7:45 PM!
Transportation has been arranged for all in attendance to get to
Gotham Comedy Club on time for the YMS event.
We have reservations at “Azalea” at 7:45 PM.
The restaurant is reasonably priced (entrees range from $14 - $30)
and is conveniently located near the hotel.
We ask that everyone pay their own way for dinner since it will be a large group.
If you would like to join us, please contact Gary Tier ASAP
so that we can include you in the reservation.
Gary can be reached at 609-375-2012 or via email at [email protected]
GREETINGS FROM THE CHAIR
Page 2
In a very short time, the 88th New York meeting will be upon us with many opportunities awaiting all, including networking, education and socializing. The YMS is once
again sponsoring its popular night at the Gotham Comedy Club. All of you should consider
attending. Tickets are going fast. It’s a great night out and has always been a success for us
due in no small part to the efforts of Walt Lockhart, our entertainment chair.
In the years I have been involved with the League, I have seen it evolve to meet the
needs of its members. The educational programs are coordinated nationally to allow for valuable programming and opportunities for our young members. Through the efforts of Jordan
Humphreys and Neil Sarker, the YMS is co-sponsoring a bankruptcy program in New York
and looking for individuals to help us with a program in Chicago and ideas for planning long
range. These programs are invaluable for improving our business and to learn from both our
peers and experts in the field.
I am very fortunate to have such strong qualified individuals both the on the YMS Executive Council and committee heads to represent our section. Not only do these people serve on our council, giving their time and energy to YMS,
but they also serve League wide on other committees such as which helps to improve their leadership skills and helps YMS
to coordinate with the League goals as a whole. Paige Barr, Jeff Lippman, Tim Wan, Jon Allen, Derek Blasker and Matt
Richburg are a few of many who spread their talents among the areas of the League.
One of the League’s most important goals has been to mentor and foster leadership. Mentorship has always been
something that YMS has strived to provide to new members. This year, YMS Executive Council decided to move the first
time attendee orientation meeting to the first night of the meeting. Formerly always on the second night, the shift was made
in order to allow the YMS mentors to assist the first timers (the “VIP’S”) in getting off to a good start and maximizing their
experience with the meeting and the League. This year, Ravi Batta will again match up YMS members to mentor the VIPs.
Gary Tier is working to assist the League in creating a rolling mentorship program so that an individual will be connected
with a member whenever he/she joins the League, not just when he/she attends a meeting for the first time. I am personally
grateful for the mentorship I received from among others, our immediate past chair and Board of Governor’s representative,
Barry Gammons.
You are reading the newsletter right now that has been put together through the time and talent of Tim Wan and
John Guerrini (also our Treasurer). I cannot thank them enough for the time and effort that goes into securing articles and
putting together this publication. It provides a consistent outlet for our members and others to get published. They are
always looking for new talent and authors so please talk to them any one of the executive council members if you would wish
to contribute. We are once again running our raffle for a free registration in Chicago, the brainchild of David Mendelson.
After last year’s very successful raffle, we once again hope everyone will purchase a chance to win. This year, the YMS raffle
will be located at the YMS table, which is next to the registration area.
I appreciate the support of the other officers, Chair Elect David Mendelson, Treasurer John Guerrini, Secretary Jeff
Lippman and all those who have assisted in our functions. I look forward to seeing you all in New York! - Julie Rausch
GO PLACIDLY by BRIAN W. DONNELLY, Esq.
Life has a funny way of putting you in your place. While not a particularly spiritual person, I have always had faith that all things happen
for a reason. A conceptualization that the universe is one giant algorithm, and all things have a reaction and reaction, from the time we are born
to the time we die, all things are mapped out with certitude to have pre-ordained repercussions on those around us, even on those not yet born. In
other words, and to borrow words from Alexander Pope, since this whole universe thing is planned out (by some entity or thing, whatever it may
be) - “whatever is, is right”. On October 3, 2008, I had this little theory of mine put to the test.
Before I go any further, let me explain that I am a Judge Advocate (a “JAG”) in the US Army Reserves -- A commissioned officer whom is
also an attorney. Established in 1775 by George Washington, the Judge Advocate General's Corps is the oldest law firm in the nation. My function is
to support military commands with their legal questions one weekend a month, and two weeks out of every year. I am a former US Marine, and have
been serving my country for over 14 years. Understand? Good -- the stage is now set for the rest of the story.
So back to October 2, 2008. It was a Friday, and I had had a particularly bad week at work - files piling up; conflicts where I was required
to be in three courts in two counties all at the same time; pain in the neck attorneys; pain in the neck judges. I had just returned to my home after a
long Friday and poured myself a glass of red wine when my cell phone rang. The caller ID came up as RESTRICTED, so I ignored it, assuming it was a
wrong number. I was surprised when the phone went off indicating that a voicemail was left. Sighing, I put down my red wine and listened to the
message, which began: (continued on page 3)
GO PLACIDLY (continued from page 2)
“Good afternoon Captain Donnelly, this is Lieutenant Colonel
Tom Rynard with 326th Task Force, you have been transferred involuntarily
into my unit and we are bound for Baghdad in the first week of December.
Please call me back.”
Gulp.
It was at that precise moment that my wife came home from
work and asked me how my day went. Ignoring her, I immediately went
upstairs to call the colonel back. He was extremely kind and apologized for
leaving the message. He stated that he was on my website and asked if I
was a sole-practitioner, which I responded in the affirmative. Bucking conventional military necessity, he stated that he understood my predicament,
and made the gracious gesture of advising that if I could find someone else
to go in my stead, he would take them on instead of me, however given
the extremely short time frame involved, he could only give me a couple of
days at the most. I thanked him and hung up the phone, now faced with
informing my wife of my (our) newly developed situation, as well as my
mother who had suffered a stroke in late May and has been living with us.
When I came into the bedroom, my wife saw the look on my face and asked
me what was wrong. I faltered for a moment, and came up (in hindsight)
with a bit of a non sequitur, asking her what was the worst thing that could
happen to my law practice? She immediately responded, “bankruptcy.”
Pregnant pause - and touché to her, I had not considered that. I thought
about asking her what the second worst thing would be, but realized the
ridiculousness of the whole exercise and just came right out and told her of
the unfolding events. She handled it like a trooper, but it was the hardest
thing I have ever had to do in my marriage. I still remember how retched I
felt for making her have to deal with me being away for a year in Baghdad,
the virtual destruction of my law practice, dealing with my mom by herself,
etc., etc.
It just so happened that I was drilling that weekend with my old
unit. I inquired if anyone was interested in going to Iraq for a year, and imparted my tale of woe, including how I was supposed to unwind an entire
law practice and prepare for deployment inside of 5 weeks. Needless to say,
no one was jumping up and down yelling, “Take me! Take me!” I advised
my wife that the outlook appeared grim.
Monday came and went without any change, and the powers
that be advised me that I should start packing my bags.
It was then, on Tuesday morning, October 7th that I got an email
from a member of my old unit (who has asked to remain anonymous), who
advised me that he would take my place. I called him up, and he told me
that he had been in the army for almost thirty years, and had not deployed
in that time. He would do this one deployment and then retire. He told
me that he had always though I was a good guy, that I was always kind
to him on drill weekends, and he appreciated what I was trying to do with
starting a law practice and dealing with my mother. He will be leaving
on November 1, 2008 and will be away from his wife and 5 children for
Thanksgiving and Christmas, and for an entire year in a warzone. It was the
most gracious, selfless thing that I have ever experienced in my time in the
military, and perhaps my life.
Page 3
Still, the Army still had its hooks in me. Because within days, I was
then advised that on December 19, 2008, I will be mobilized to Rosslyn
Virginia, outside of the Pentagon at the Office of the Judge Advocate
General. There I will join the Central Criminal Courts of Iraq Support
Cell, assisting in the prosecution of terrorists and individuals who have
attacked
or facilitated
attacks on What was the worst thing Iraqi civilians,
Americans, that could happen to my and
other
foreign aid
workers in Iraq.
law practice?
My business
will be put on
hold for a
year, and will
She
immediately
respondno doubt
take a big hit,
but other ed, “bankruptcy.”
attorneys and
many of my
clients have
advised that they will support me in my situation. Two of the commercial litigation heads of my corporate clients have spouses who are
deployed currently, and have assured me that my work will continue
when I get back. I will be able to unwind the firm properly, and will be
able to come home on the weekends to assist my wife and my mother.
So, all in all, things could be a lot worse.
At the time of this writing, some 4,775 service members
have been killed in Operations Iraq Freedom and Enduring Freedom.
At least 30,000 have been wounded in theater. Hundreds of thousands have had their lives disrupted, and/or been separated from
their families and their loved ones, in some cases for periods of almost
two years. I do not want to politicize the Wars in Iraq or Afghanistan,
and your opinion of whether or not the wars are justified is not really necessary for you to appreciate my story. However, I did want to
share with you and remind you that these wars are still going on, and
real people - even lawyers - are affected by them each and every day.
Most importantly, I wanted to share with you the selfless act of one
servicemember who greatly affected my life, which is just a singular
example of the thousands of selfless acts performed by our soldiers
and marines every day they are out there. It is easy to get caught up
with our practices, our businesses, the flagging state of the economy,
and the hustle and bustle of everyday life. But as you read this article,
please give pause, and as the holidays approach, find time for a quiet
moment to give thanks to those who volunteer to stand watch and
sacrifice their time, life, hopes and dreams, so that you, or your spouse,
children or grandchildren, don't have to.
BRIAN W. DONNELLY, Esq.
Captain, Judge Advocate, USAR
CLLA Member
Brian Donnelly is a Captain and Judge Advocate in the US Army Reserves.
He maintains his own law practice in Cherry Hill, NJ and is a member of
the CLLA and the Young Members Section. He can be reached at [email protected]
Does My Collection Practice Need a Dedicated Marketer?
By Chad Pedersen
“You do what?”
These are the three words I typically hear from
people (law firms and agencies alike) when I tell them
my position at the firm as the Director of Marketing for
our collections department. Usually, people want to
learn how a dedicated marketing person could help to
grow their practice, put the firm’s name in front of more
forwarders, and grow the volume of placements to the
firm. Is it cost effective? Can it work for me? Do you
have any other responsibilities at the firm? How effective
is it to have someone in your position?
These are all great questions, and I will be the first
to admit that I don’t have all the answers. The answers
are dependent upon the stage of growth of your practice,
and where you want to take it. What I will do, is give
you some insight to having a marketing position at your
firm.
Of course, the best person to market your practice
is usually yourself. However, what happens when you’re
not comfortable blowing your own horn? What if you
are better at working the claims placed in your office
than you are at marketing? What happens when that
hour-a-day (that all the experts say is necessary to grow
your practice) never materializes? How well do you
handle the constant rejections from potential new clients?
Sometimes, hiring someone to grow your business and
develop new ideas just fits; as he/she will handle the
things you don’t want to. Having a dedicated marketer
also means that your services are being discussed all day
long, not just a few hours each week.
Just as not everyone is cut out to be an attorney,
not everyone is cut out to be a marketer. The marketer
is going to represent your firm to forwarders around the
country – perhaps even overseas, attending conferences
and conventions to network with potential clients.
Additionally, he/she will go on the road to visit the
forwarder’s place of business and get a feel for how best
your law practice can work with and assist the creditors
on a more informal basis. Besides business development,
a marketer is going to be your client services department,
making sure that your forwarders’ inquires are always
answered. Since this person is in contact with those
who are sending work to you, he/she is in a position
with a clear view to see what the forwarder needs,
and come up with solutions to those needs. The right
marketer will make sure he/she is invaluable to the firm’s
forwarders.
Additionally, a dedicated marketer likely speaks
the same “language” as your forwarders. As I have been
told by many people in the collections industry, the legal
profession has a language that is all its own. From “writ
of execution” to “arrest warrant,” some forwarders
Page 4
hear these phrases and begin to worry about the path
their client’s cases have taken. Is the attorney really
sending out a police officer to arrest this guy, and what
is the story with this execution? We do not want to kill
the debtor, just get the invoices paid. Your marketer
should be able to help communicate your needs to
the forwarder, and help educate the firm’s clients by
translating “legalese” to everyday English. This will
increase the value your firm has to the forwarders
and lead to more placements and referrals to their
contemporaries.
Not every firm needs a marketing person. And
in fact, often, a law list can do a great job of getting your
firm name in front of a number of forwarders. When
you do hire a marketer, you will want someone that
will be able to work closely with the law lists of which
you are a member so as to increase the effectiveness of
the listing and maximize the return of your marketing
dollar.
Additionally, your marketing person may wish
to work with direct creditors. This will be an area of
caution for anyone. For us, we have found that our
strength as a firm is not as a quasi collection agency,
but rather a place to collect the real tough cases where
nonpayment would result in prompt legal action. We
assume that anything placed with our firm is here
because
the creditor
Sometimes, hiring recognizes
that suit
may be an
someone to grow eventuality.
Just like your business and every other
law firm,
we have
a
f e w develop new ideas forwarders
who refer just fits.
business
directly
because
o
f
personal
relationships with people in the firm, but the vast
majority of our referrals come from commercial and
retail collection agencies around the country. There
is a reason why the CLLA has been around for more
than a century! Overall, a marketer can help grow your
practice, but consider that a marketer can also help to
transform it. This person will help to bring innovation
and new ideas, bringing your firm to the forefront of
the legal forwarding and receiving.
Chad Pedersen is the Director of Marketing for Fein, Such,
Kahn & Shepard, P.C. Since 2001, he has held marketing
positions at law lists as well as his current position for a
collection law firm in New Jersey. He can be reached at
[email protected] or 973-538-4700.
Going To Trial Without a Witness - and Winning!
By Matthew J. Richburg
Page 5
With the increased volume of retail claims collection attorneys are seeing recently, it is becoming more and
more common that witnesses are not available for trial. In Wisconsin, most courts will allow our witnesses to appear
by phone, especially in small claims cases (claims for $5,000 or less). Most of the time the case can be resolved
through summary judgment or settlement. In those small percentage of cases where the court has determined that
there are genuine issues of material fact, and the case cannot be settled, the case will eventually go to trial.
At that point the client is asked to provide a witness. If it is a high volume out of state retail client, I know it is
highly unlikely that I am going to get a witness in person unless the claim balance is upwards of tens of thousands of
dollars. So I ask the court to allow the witness to appear by phone in virtually every case, and explain that my client
is out of state, the claim is straightforward (usually I’ll only try this with a credit card or straightforward loan case),
and that there are very few exhibits which I will mark and provide to both the court and the defense prior to trial. For
the most part, courts accommodate this request. In some cases, they will even allow me to appear by phone too.
Often, especially for my higher volume clients, the answer back from the client is that even a phone witness
is not available for trial. I am given full authority to settle or dismiss if necessary. Most of the time if the case has
reached this stage the debtor still refuses to settle. Sometimes the debtor actually thinks there is no way they can
lose the case, or maybe they suspect I will not be able to produce a witness and they smell a victory. But if I have
worked the file for months, and the debtor has been determined to be collectible, and it just doesn’t feel right to
dismiss the case when I think I have a better than 50-50 shot at meeting my burden of proof even without a witness
from the client. Attorneys have an ethical obligation to zealously represent the client, and I want to do we can for
the client. Sometimes it is a good client and I want to that extra mile. Not to mention that THE DEBTOR OWES
THE MONEY and shouldn’t get away with not paying just because the client cannot get someone on the phone for
a 20 minute trial. At this point I will review the file closely and decide if I realistically think I have enough to prove my
case on adverse testimony alone (meaning the debtor would be my only witness). If there is a legitimate dispute that
I cannot likely get past without testimony from the client, I obviously have no choice but to dismiss the case. However, if the defendant is pro se (which they often are), and has a weak dispute such as they just do not like to pay
interest, often I will proceed if they appear to be collectible. For example, I have a stack of credit card statements
with multiple charges and payments that are addressed to their admitted address for the past 7 years, and maybe
even a signed application clearly matching the signature on their answer. If I have time before trial, I’ll even issue
discovery asking them to admit facts that prove the claim, and to admit to making payments made on the account
that appear on the statements.
Often I have debtors that are dishonest and/or desperate enough that they are willing to lie and claim the
account is not even theirs, and that they never made any charges or payments on the account. However, I have
account statements over a several year period addressed to their house, charges made in their home town, and
many payments made on the account. In those cases, I have issued subpoenas to the debtor’s bank after the
debtor denies making any payments on the account, only to find that their bank statements clearly show matching
payments to the account. At that point I have them.
Some defendants when presented with invoices or statements under oath are savvy (or dishonest) enough
to refuse to admit they remember making any charges or receiving any of the statements or other documents you
are trying to authenticate and introduce into evidence. However, most court commissioners and judges when presented with substantial documentary evidence showing a debtor’s name and address find that the document is authentic and determine it to be admissible even though debtor will not admit whether or not that particular document
was received in the mail, or that the figures contained therein are accurate. If there is an attorney representing the
debtor, I make a point to confirm in writing that the debtor will be present at trial, and issue a subpoena if I cannot get
that representation from defense counsel. I do not want to get into a situation where the debtor’s attorney appears
planning to try to settle the case on the fly, or try and defend the case without the defendant present if necessary. If
that happens, and I didn’t issue a subpoena, there are no witnesses to call and I would lose the case. However, if I
have good documentation, and the claim is straightforward, even if the debtor has an attorney I can often succeed
without a witness as long as I have the debtor as my star witness.
There is something very rewarding about winning a case without a witness from the client. Zealously advocating for a client sometimes requires a little creativity. Depending on the facts of a particular claim, presenting a
case to the court on adverse testimony alone is a challenge that is sometimes worth pursuing.
Matthew J. Richburg is an attorney at law with the Kohn Law Firm SC. When he is not in court winning
cases, he can be reached at 414-276-0435 or [email protected]
To Arbitrate or Not to Arbitrate? That Is the Question
By John D. Guerrini
Page 6
I am preparing for a hearing in late November in a case that is pending before an arbitrator. The case was filed in September
2005 but still has not been resolved. It has cost the parties involved combined attorneys' fees approaching two million dollars. The
arbitrator's fees are over $200,000. Had the case been filed and litigated in Superior Court, a judgment would likely have been issued by
late 2006 and any subsequent appeals would undoubtedly have been ruled upon by now. Without a doubt, the attorneys' fees would
have been significantly less. And of course, in Superior Court, the judges don't charge a fee.
While this example is extreme, it is not isolated. I just closed an arbitration in a simple collection case where the arbitrator's
fees approached $20,000. Why? Because the defendant managed to drag the case on for three days at trial and engaged in such stonewalling tactics as refusing to produce discovery responses, that significant motion practice was required. Because the client's contract
with the debtor did not include a provision for recovery of either attorneys' fees or costs, the ultimate award I secured included neither.
The simple fact is that while the general public hears over and over about how efficient, quick, and cheap arbitration can be,
in reality, nearly every arbitration in which I've been involved has cost the clients significantly more than had they litigated the case
in Superior Court. The only fee to get into Superior Court is the filing fee (which in most
counties in California is approximately $350). There are no room charges, no hearing fees, no
While the ADR process
administration fees, no conference fees, no brief review fees, no parking fees, no telephone fees,
itself is private, the resultand of course, there are no arbitration fees, and there are certainly no continuance fees.
ing award cannot be
The proponents of arbitration (commonly called “ADR” - Alternative Dispute Resolution)1 frequently cite its benefits: (1) it's private; (2) it's fast; (3) parties maintain control
enforced unless/until it is
over the process; and (4) it's less expensive than going to court. In reality, I have found none of
reduced to a judgment.
these so-called benefits to be true.
While the ADR process itself is private, the resulting award cannot be enforced
unless/until it is reduced to a judgment. This means taking the award to Superior Court. With
very few exceptions, all filings in Superior Court are public information and accessible by the public. So any notion of privacy is gone.
The arbitration process can be fast. The cases that are extremely simple, require no discovery, and can be heard in less than
a day, should be resolved within a few months of filing. But most cases aren't extremely simple. And even the very simple ones can go
awry. The process itself can drag on and on and on. And that means more and more attorneys' fees.
The parties don't really control the process. In fact, the process is set by rigid rules set by the arbitrator (or, more commonly,
the organization to which the arbitrator belongs). Some of these organizations are national in scope, and many have an extensive set of
rules that the parties must read, understand and adhere to. The arbitrator is usually a retired judge, and he/she can run the arbitration
process just like he/she did the courtroom. And as all attorneys and frequent litigants know - some judges run the courtroom as if it is
the only courtroom in the world.
Arbitration in my experience is rarely less expensive than going to court. Most arbitration providers charge for everything.
Everything. If the arbitrator's fee is $3,000 per day, and the arbitration is three days, then his fee is $9,000. Also expect to pay a hearing
fee, a brief review fee, a conference room fee, and parking fees.
More and more, I counsel my clients to consider removing mandatory binding arbitration provisions in their agreements.
There are clearly some exceptions to this, such as those clients in the construction/contracting business or banking and financial institutions.2 But for most clients, it often makes sense to remove the provision altogether or at a minimum, draft the provision such that
arbitration is waivable by one or both parties.
What to do when you are a party to a contract that requires mandatory binding arbitration of all disputes? Can you still go to
Superior Court? The answer is yes, and it is done all the time. If a client finds itself in such a situation, we may well counsel that client
to sue in Superior Court, thus impliedly waiving the arbitration provision. If the defendant/debtor responds with a general appearance
by way of an Answer (which most do), then case law in California generally holds that the response constitutes a waiver of the arbitration provision. If the defendant/debtor participates in the discovery process, such conduct is generally considered to be tantamount to
availing oneself of the benefits of the Superior Court and thus, construed as a waiver of the arbitration provision.3
In Superior Court, the vast majority (i.e. 98% according to one recent statewide survey) of lawsuits are resolved by final judgment within 12 months of the initial filing date. This near certainty of resolution within a year, coupled with a filing fee of less than five
hundred dollars, means that most of my clients readily choose Superior Court over private arbitration for their litigation.
John D. Guerrini is an attorney and principal of The Guerrini Law Firm in California. When he is not in court or at an arbitration that
he couldn't avoid, he can usually be reached at 626-229-9611 or [email protected]
Page 7
The Rhythm of Life
By Gary Tier
Music is an important part of my life — important enough to accompany me throughout the day
— subtly in the background yet always at the forefront of helping to set the tone for the daily challenges in
my professional and personal life.
My day starts with a song that plays through my alarm clock from my iPod, which has a collection
ranging from Bob Dylan to Radiohead to Jay Z, and everything in between. Country, Rock and Hip Hop are
all part of the repertoire. The Man in Black, Old Blue Eyes, Slow Hand and Diddy - they all get air time on
this station. The artist and song that I select the night before will influence how I see the world when I get
in the car and hit the road each morning.
By now, you’re wondering what music has to do with the YMS. Indulge me for a moment while
I use music as a metaphor in comparing our work to the work of some great songwriters and to the music
industry itself.
When working on a project, I often wonder “How do the best songwriters do it?” and “Where do
they get all of that inspiration?” These questions often lead me to think of the legendary Bruce Springsteen,
which is a natural thought process when you’re born and raised in the great state of New Jersey! Bruce’s
commercial success overshadows his brilliant songwriting but that’s a discussion for another day.
As I think about the YMS, I know that music is important to some of its members. Walter Lockhart
is not only an avid listener, he is still an active musician. I recently learned that John Guerrini is a musician
and a wine connoisseur. Timothy Wan satisfies his love for the arts by helping artists through his privilege
to practice law. Barry Gammons is proud to bring the Nashville sound with him to every meeting he attends.
I would be remiss if I didn’t mention our esteemed former Chair, Emory Potter, who truly personifies the phrase “walking to the beat of his own drummer.” Someone truly blessed Emory because his drummer only plays happy music!
In addition to its personal nature, music is a business. Look at how the music industry navigated
its way through the stormy waters of Napster, intellectual property lawsuits, and the advent of the iPod.
The industry reinvented itself, adjusted its business model and is doing quite well.
Perhaps we can take our que from the experience and remember that in these tough times, we have
to be innovative and perform better than ever. If we create a slow, steady beat, we can hit the high notes
and have our message resonate above all others.
Music is powerful. It sets a tone, creates a mood, relaxes the mind, body and spirit, and marks time.
Music is inspirational, motivational, evocative and provocative. In essence, it can help establish a sort of
rhythm for life. Sometimes, you get the beat right away, sometimes you have to play it again. Sometimes,
you understand the words; the next time, you might have to pay more attention — listen better. Sometimes,
the meaning changes as your life does.
Music is a powerful resource. Use it to your advantage as you begin each day. Whether you’re
rushing through an airport, catching a train, getting ready for a meeting, negotiating a deal, managing a
difficult situation or reveling in collecting on a big file - music can put the exclamation point on your success or provide the space you need in a tight spots or help you manage a tough situation. Music can be the
great equalizeris a person’s best friend – in any situation.
Okay, back to me. Let’s fast forward to the end of the day when music is once again center-stage.
That softer, gentler tone that awakened me at 6:30 a.m. has now turned into the more pulsating kind that
accompanies me on the four-mile run at the gym.
I’ll push a little harder, make the strides a little longer, my reactions a little quicker, my breaths a
little deeper. Let the tone ring true as it motivates me to finish this challenging run.
The bottom line: song selection is key.
Gary Tier is the President & Publisher of The Forwarders List of Attorneys, a leading directory of collection law firms.
When Gary isn’t rocking out he can be reached at 800-638-9200.
Page 8
The Tale of the Horrible Pro Se Debtor, or
Sometimes A Little Bit of Knowledge Is a Lot Dangerous
by Timothy Wan
Almost anyone who does retail collection litigation has that infamous epic horror story where the twentypercent 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.
ResoI knew he couldn’t have possibly gotten the documents yet. However, despite the “Amicable
lution”.
Ah,
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 words that tease
well as a demand for my senior partner’s attorney registration number, home ad- us like an empty
dress, social security number, and date of birth. (Mr. Badenov could have thought we
bottle of milk to a
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. starving baby.
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. (continued on page 9)
Page 9
The Tale of the Horrible Pro Se Debtor, (continued from page 9)
“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 “Vadenov”. 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 is a partner at Smith Carroad Levy & Finkel in Commack, New York, can be reached at
[email protected], and really really needs to watch less television.
John Guerrini
If you would like to contribute to
the YMS TIMES,
please do not hesitate to contact
Newsletter Co-Chairs
John Guerrini at [email protected]
or Timothy Wan at [email protected]
Timothy Wan
Page 10
Young Members
Section Officers:
Barry J. Gammons
Immediate Past Chair
Matthew Richburg
Executive Council
Jonathan Allen
Executive Council
Neil Sarker
Executive Council
Julie Rausch
Chair
David Mendelson
Chair-Elect
John Guerrini
Treasurer
Jeff Lippman
Secretary
Paige Barr
Executive Council
Gary Tier
Executive Council
Ravi Batta
Executive Council
Timothy Wan
Executive Council
Derek Blasker
Executive Council
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