Judge Who Follows Law Annoys Bar Members

Problems Faced by Pro Se Defendant Are Typical for Debtors Too Poor to Hire Experienced Counsel
The New York Law Journal by Andrew Keshner - January 10, 2011

In a case highlighting problems created by the widespread inability of debtors to hire attorneys, a Nassau County judge has rejected an out-of-court settlement between a debt buyer and a pro se litigant who said she had been "intimidated" into taking the deal. "It was painfully obvious to the Court that plaintiff obtained the settlement outside of court by taking undue advantage of defendant," District Court Judge Michael A. Ciaffa wrote in LR Credit 21 LLC v. Paryshkura, 30821-2010. "Judges have the power and duty to make appropriate inquiries, and in appropriate cases, allow the defendant to withdraw from a proposed settlement." Judge Ciaffa commented that the "adversary system works fairly well in civil cases where the parties are each represented by counsel. It works less well when one side has an attorney and the other appears pro se." But debt collection defendants like Tatyana Paryshkura, who was a student and part-time waitress when the action was filed, "rarely [have] the benefit of a lawyer's help," he added. The decision clears the way for a trial later this month on the merits of the claim of debt buyer LR Credit 21 LLC against Ms. Paryshkura for $7,564 in unpaid credit card bills. Judge Ciaffa made his ruling after a Dec. 3 conference he called to consider the settlement. His opinion does not disclose the terms of the aborted agreement, but a lawyer for LR Credit 21 said that Ms. Paryshkura had agreed to pay $5,000 in increments of $100 a month for 50 months. The judge found that would be money "otherwise needed for food and rent." At the conference, Ms. Paryshkura told the judge that she had signed a "stipulation of payment" only after an attorney from Mel S. Harris & Associates, which represented the debt buyer, "convinced her that she had no choice but capitulate to plaintiff's demands." Judge Ciaffa complained that the attorney who appeared for the firm at the conference was unable to offer proof of Ms. Paryshkura's alleged debt even though the firm had been told that it should send someone with "complete knowledge of the file." "The absence of such proof weighs heavily in favor of allowing defendant to withdraw her consent to the settlement," the judge said. This was not the first time Judge Ciaffa had sided with a pro se collection defendant. Last year, he sanctioned a different law firm for what he called a "veritable 'perfect storm' of mistakes, errors, misdeeds and improper litigation practices" (NYLJ, March 8, 2010). Arthur Sanders, managing attorney for Mel Harris, contended in an interview that Ms. Paryshkura had willingly signed the stipulation. He said that she had wanted to avoid going into court and traveled from Long Island to the firm's Manhattan offices to sign an advantageous agreement that would have allowed her to save more than $2,500 on her debt. The attorney said LR Credit 21 will not appeal; given the small amount involved, it would not be worth the cost. Mr. Sanders said he has not decided whether to pursue another settlement or to proceed in court. Mr. Sanders said that the per diem attorney who appeared at the Dec. 3 conference had expected the court to approve the settlement and was not "there for a trial or to put witnesses on the stand." He added that "quite a few" debt collection cases are settled in out-of-court negotiations, and that the judge's decision to call a conference and question the arrangement was not the norm in local courts. "There was nothing unusual about this case until the very end," he said. "I know collection lawyers are not the most popular people on the face of the earth but judges really can't be advocates."

'Peculiar Responsibilities'

Judge Ciaffa said a defendant's pro se status often makes the court's role more difficult. Quoting U.S. Supreme Court Justice John Roberts Jr., he said that on the one hand, judges "act as umpires; their job is 'to call balls and strikes and not to pitch or bat.' On the other hand, Judges have peculiar responsibilities in cases involving pro se litigants," including "in many cases the supervision of the settlement process, both in and out of court." Judge Ciaffa explained that his determination was founded in common law principles, citing a 1855 Manhattan Supreme Court case, Becker v. Lamont, 13 How. Pr. 23, that rejected a settlement, saying judges have the power to "protect those who are unable to protect themselves." "The circumstances at hand presented a classic case for granting such judicial relief," Judge Ciaffa concluded. "The defendant, in this case, ignorant of her rights, signed an imprudent settlement, agreeing to pay plaintiff, a debt buyer, monthly sums otherwise needed for food and rent." State judges often face the dilemma like the one outlined by Judge Ciaffa. According to a New York Unified Court System report, more than 2.3 million New Yorkers "try to navigate the State's complex civil justice system without a lawyer." The report of the Task Force to Expand Access to Civil Legal Services in New York noted that in 2009, only 1 percent of defendants were represented by counsel in 241,594 consumer credit cases filed in New York City Civil Court. But all of the entities bringing the actions had attorneys. "Persons who are being sued for an alleged indebtedness typically are individuals with multiple financial problems," Judge Ciaffa said in his decision. "Regardless of whether they legitimately owe the alleged debt, or not, most cannot afford to hire a lawyer. As a consequence, those who appear must typically do so, pro se."

Uncommon Defense

Jonathan Schwartz, staff attorney with Nassau/Suffolk Law Services, said pro se representation was especially problematic in cases brought by debt buyers because most debtors were not aware of a potentially effective defense: the argument that their adversaries lack standing because they could not prove that they actually owned the debt for which they were seeking payment. Mr. Schwartz worked exclusively for a special consumer debt assistance project from November 2007 to April 2010, before budget problems forced its discontinuance. Out of the few hundred cases handled, he said that debt buyer plaintiffs were unable to prove standing in nine out of 10. But he said that the argument is not raised by most pro se defendants. "I would venture the majority have no idea what to do and kind of just go along," Mr. Schwartz said. However, he said that Judge Ciaffa's decision may contain enough detail to "tip off" Ms. Paryshkura to the argument. "Most defendants aren't fortunate enough to get a decision like this," he said. Judge Ciaffa wrote, "The judges of this Court, and the lawyers practicing before them, know all too well that debt buyers rarely have readily available proof to establish an assigned debt claim. The pennies paid by debt buyers for the right to pursue stale and questionable claims certainly do not justify misleading and heavy-handed collection tactics outside of Court. When such matters actually come on for trial, they are typically abandoned, dismissed or compromised for a small fraction of their hypothetical value." Mr. Sanders, the debt collector's attorney, questioned that assertion as far as his own firm is concerned. "I think it's not true," he said. "I'm certainly not aware of that. We do have standing. We do have documentation." Ms. Paryshkura could not be reached for comment. If her case goes to trial, it is unclear that she will have the assistance of an attorney. No attorney has filed an appearance in the case to represent her, according to the court. Andrew Keshner can be contacted at akeshner@alm.com.