How do you resolve a judgment when the attorneys of record simply claim to no longer represent the plaintiff?
Very frequently, our office encounters this problem. The usual response: "this office no longer has the file."
Who is the consumer supposed to call to attempt settlement of the judgment? On which party does the consumer serve her Order to Show Cause to vacate the judgment?
Aside from being inherently unfair, Judge Straniere of Richmond County Civil Court cited statutory law to decry this pervasive, unfair – if not deceptive – practice.
In American Express v. Nath, after Amex had secured a default judgment for $11,794.01,
Mel S. Harris & Associates later came into the picture as new counsel for
LR Credit 14, LLC who claimed to have been assigned the judgment.
In December of 2009, the defendant filed an order to show cause seeking to vacate the default judgment. Service of the motion was made upon Mel Harris at the address appearing in the court file. On January 13, 2010, the defendant's motion was granted upon the court not having received written opposition. The court issued an order vacating the judgment and permitted the defendant to file an answer. The defendant filed a
pro se answer, and consequently, the court scheduled a court conference to oversee the case.
On February 8, 2011, Mel Harris & Associates appeared and informed the court that it was no longer counsel for the plaintiff.
Citing "several substantial problems," Judge Straniere dismissed the case with prejudice for failing to comply with CPLR § 321 by serving and filing a "substitution of counsel" or otherwise taking the procedural steps to let Mel Harris out of the case.
Among the reasons why CPLR § 321 governs and must be invoked to dismiss the case:
- Corporate plaintiffs (including LLC's) are required to be represented by an attorney of record, and absent one, the action may not proceed.
- If the attorney failed to comply with the CPLR, her or she may be subject to a malpractice suit by the creditor.
- Failure to comply with the CPLR may constitute a violation of the Rules of Professional Conduct (1.16).
30 Misc.3d 1225(A), 926 N.Y.S.2d 342 (2011)
 Naming LR Credit 14, LLC as the "plaintiff" was probably a misnomer since the court lacked evidence that the judgment had been legally assigned from Amex.