Opinion
No. CV10–0155.
2010-09-3
CACH, LLC, Plaintiff v. Katrina SLISS, Defendant.
Ira R. Sitzer, Esq. Daniels & Norelli, P.C., Westbury, for Plaintiff. Katrina Sliss, Pro Se Defendant.
Ira R. Sitzer, Esq. Daniels & Norelli, P.C., Westbury, for Plaintiff. Katrina Sliss, Pro Se Defendant.
MICHAEL F. McKEON, J.
In this action for monies due under a credit card agreement, Plaintiff moves for summary judgment against the Defendant in the amount of $6,198.84 plus interest at the rate of 9% from August 29, 2008 and the costs of this action. Plaintiff commenced this action on February 10, 2010. Defendant filed an answer, dated March 25, 2010, which Plaintiff argues is a general denial that does not raise any triable issues of fact. Defendant has not responded to this motion.
In order to be entitled to summary judgment, a moving party must submit evidentiary proof in admissible form establishing its entitlement to judgment as a matter of law. In credit card cases, the Court must look at whether the Plaintiff is the original creditor or if the card has been assigned to the Plaintiff. If the card has been assigned, then the Court must look at whether Plaintiff has standing to sue. In particular, the Court must determine if Defendant received notice of the assignment and whether proof of the assignment has been submitted to the Court.
In order for Plaintiff to show that it has standing to sue, it must provide a complete chain of assignments from the original creditor to itself ( see RAB Performance Recoveries, LLC v. Scorsonelli, 242 NYLJ 16 (Richmond Cty 2009)). Such assignments must also demonstrate that the assignment took place prior to the date the action was commenced ( see eg DNS Equity Group, Inc v. Lavallee, 26 Misc.3d 1228(A), 2010 N.Y. Slip Op 50298U (2010)). It is the assignee's burden to prove the assignment ( see Citibank, NA v. Martin, 11 Misc.3d 219 (Civ Ct, N.Y. County 2005)).
In the instant case, Providian Bank was the original creditor. Providian allegedly later merged with Washington Mutual Bank, which sold Defendant's account to JP Morgan Chase & Co. (Chase). According to Plaintiff, Chase then assigned Defendant's account to Plaintiff. In support of its motion, Plaintiff submitted an affidavit from its attorney, as well as an affidavit from an authorized agent of Plaintiff's recovery division. Plaintiff also included an “affidavit of sale,” signed by a Chase Team Leader, which purports to show that Chase purchased Defendant's account from Washington Mutual and that the account was sold to Plaintiff. However, the affidavit of sale from the Chase Team Leader also alleges that Washington Mutual sold the account to Plaintiff, making it unclear as to the true chain of the assignments.
Plaintiff's papers fail to demonstrate that a valid assignment exists entitling Plaintiff to bring said action. The affidavit of Plaintiff's agent is clear that its statements with regard to the assignments of the account from the original creditor and eventually to Plaintiff were made upon information and belief and not upon personal knowledge. The affidavit from the Chase Team Leader likewise appears to rely, in part, on information obtained from others rather than on first hand knowledge. Moreover, the affidavit of the Chase Team Leader appears to contradict itself stating in one part that Chase was assigned certain receivables by Washington Mutual and in another part stating that Washington Mutual sold the account directly to Plaintiff.
Moreover, nowhere in the moving papers does it demonstrate that Defendant had notice of the assignments. This is important given that a debtor will only have a duty to pay an assignee if he or she has notice of it ( see Caprara v. Charles Court Associates, 216 A.D.2d 722 (3rd Dept 1995). The papers do not provide the Court with competent proof by a person with knowledge of the dates the assignments were made, nor are copies of the assignments annexed ( see eg DNS Equity Group Inc. v. Lavallee, 2010 N.Y. Slip Op 50298 [U], *2; see also CACV of Colorado, LLC v. McKesey, 24 Misc.3d 1230A, 2009 N.Y. Slip Op 51673[U] (Mount Vernon City Court 2009)).
Further, Plaintiff's proof is insufficient to establish a proper foundation for the admission of certain documentary evidence, including the original account agreement between Defendant and Providian Bank and the account statements. Pursuant to CPLR 4518(a), a business record is admissible if it is established that it was made in the regular course of business, that it was the regular course of the business to make the documents, and that the documents were made contemporaneous with or within a reasonable time after, the act, transaction, occurrence or event recorded. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures” (West Valley Fire District No. 1 v. Village of Springville, 294 A.D.2d 949 (4th Dept 2002); see also Palisades Collection, LLC v. Kedik, 67 AD3d 1329 (4th Dept 2009)). Plaintiff's agent based her affidavit upon documentation provided by the original creditor. As Plaintiff's agent does not have personal knowledge of the original creditor's business practices, the proof is insufficient to establish a proper foundation for the account agreement and account statements. “Submission of the underlying statements, in proper evidentiary form, is required in assigned debt cases, like this one” (DNS Equity Group Inc. v. Lavallee, 2010 N.Y. Slip Op 50298[U], *3; see also PRA III, LLC v. Gonzalez, 54 AD3d 917 (2d Dept 2008)).
Accordingly, Plaintiff's motion for summary judgment is hereby denied.
This constitutes the decision and order of the Court.