Opinion
CV-016661-17/KI
03-22-2019
CREDIT CORP. SOLUTIONS, INC., Plaintiff, v. Von CHRISTIE, Judith a Christie, Defendants.
Steven L. Rosenthal, Farmingdale, for Credit Corp Solutions, Inc., plaintiff. Von Christie, defendant pro se. Judith A Christie, defendant pro se.
Steven L. Rosenthal, Farmingdale, for Credit Corp Solutions, Inc., plaintiff.
Von Christie, defendant pro se.
Judith A Christie, defendant pro se.
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT 3
AFFIDAVIT OF FACTS & CHARGE OFF STATEMENTS 4
SUMMONS, COMPLAINT & AFFIDAVIT OF SERVICE 5-6
AFFIDAVIT IN OPPOSITION 7
INTRODUCTION
Plaintiff moves This Honorable Court by Notice of Motion, with opposition, pursuant to CPLR 3212 for an Order granting Summary Judgment in favor of Plaintiff and against Defendant for the relief sought in the Complaint together with such other and further relief deemed just and proper. For the reasons set forth below, Plaintiff's motion is DENIED.
PROCEDURAL AND FACTUAL HISTORY
Defendants entered into a revolving credit card agreement with original creditor, Synchrony Bank, formerly known as GE Capital Retail Bank. Thereby authorizing defendants to make purchases, receive cash advances and were obligated to reimburse Synchrony Bank in addition to finance charges. Plaintiff claims that Synchrony Bank mailed monthly statements which were received and retained by defendants from October 24, 2014 through September 23, 2015 without objection. Plaintiff claims with attached statements contained within Motion Exhibit D, last payment made by defendant was $ 50.00 on May 21, 2015. After the last statement a claim adjustment was made, bringing the balance due to $ 3,816.40. A post charge-off credit of $ 2,600.00 was given to defendants, resulting in the current balance due of $ 1,216.40. Synchrony Bank as original creditor sold to Plaintiff Credit Corp Solutions Inc. as third-party debt-buyer Assignee as evidenced by "Bill of Sale", "the Receivables as set forth in the Notification Files" (Affidavit of Lacee Hunsaker) on November 20, 2015. Plaintiff claims that it is the current owner of defendants' account and that the defendants' debt has not been sold nor assigned to any other entity. Demand for payment has been made by plaintiff to defendants. However, defendants remain in default of the agreement for the adjusted charge off balance amount of $ 1,216.40.
Seeking to recover this unpaid balance of $ 1,216.40, plaintiff commenced this consumer credit transaction case on August 1, 2017 to recover said sums due and owing by Summons and Complaint for the following claims:
FOR A FIRST CAUSE OF ACTION
3. The defendant(s) heretofore entered into a credit card agreement with plaintiff's predecessor in interest, Synchrony Bank.
4. Under the terms of the agreement the defendant(s) were authorized to, and did make, charge purchases and obtain cash advances and were obligated to repay the same together with applicable interest however, defendant(s) defaulted in making the payment due leaving a balance of $ 1,216.40 as of October 21, 2015.
5. Plaintiff took by assignment all right, title and interest to receive the payments due pursuant to, and in accordance with the said credit card agreement, and is the legal assignee of the original creditor.
6. Defendant(s) is/are liable to plaintiff as a result of defendant(s) breach of agreement.
FOR A SECOND CAUSE OF ACTION
7. That heretofore, plaintiff, or the assignor, rendered to defendant(s)monthly, full, just and true accounts of the indebtedness due and owing by defendant(s) as a result of the aforesaid transaction, which is the sum set forth above, and said statements were delivered to defendant(s) without objection, resulting in an account stated for the amount claimed above.
Affidavit of Service states effectuated pursuant to CPLR 308 (2) by delivering to a person of "suitable age and discretion" to wit, Lloyd, at defendant's "last known residence, usual place of abode" on August 9, 2017 at 7:29 A.M., with service being completed by subsequent mailing of copy of the summons and complaint "properly enclosed and sealed" to defendant's "last known residence, usual place of abode" in 1st class mail marked ‘personal & confidential’ not disclosing the sender's identity, on August 14, 2017. Proof of service was filed with Kings County Clerk of the Court on August 15, 2017.
On August 10, 2017, issue was joined upon defendants filing of Answer with the Court, stating: "I have paid all or part of the alleged debt"; and "I have no source of income. I'm currently unemployed" (Motion Exhibit B). All parties appeared on August 18, 2017, December 6, 2017, May 17, 2018, October 18, 2018 and court adjourned to February 28, 2019 final for trial, for plaintiff's reply to defendants' opposition dated October 18, 2018 and for decision on the instant motion. Oral argument held on motion on February 28, 2019, court reserved decision with control date pending outcome of decision of September 16, 2019.
DISCUSSION
Plaintiff-Assignee moves by notice of motion to establish that as a matter of law, the admissible evidence presented within the motion papers make out a prima facie entitlement to summary judgment pursuant to NYS CPLR 3212 (b) :
(b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact ( Sillman v. Twentieth Centurv-Fox Film Corp. , 3 NY2d 395 [1957] ; Alvarez v. Prospect Hosp ., 68 NY2d 320 [1986] ). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact ( Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 853 ; Zuckerman v. City of New York , 49 NY2d 557, 562 ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 ; see also Giuffrida v. Citibank , 100 NY2d 72 [2003] ). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers ( Di Menna & Sons v. City of New York , 301 NY 118 [Ct App 1950] ). Where the court finds an existence of such an issue or where the issue may be so deemed "arguable" requires denial of summary judgment ( Braun v. Carey , 280 App Div 1019 [3d Dept 1952] ; Barrett v. Jacobs , 255 NY 520, 522 [Ct App 1931] ). "Issue-finding, rather than issue-determination, is the key to the procedure" for the court ( Esteve v. Avad , 271 App Div 725, 727 [1st Dept 1947] ; Gravenhorst v. Zimmerman , 236 NY 22, 38-39 [Ct App 1923] ). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility ( S.J. Capelin Assoc. v. Globe Mfg. Corp. , 34 NY2d 338 [1974] ). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion ( Sillman v. Twentieth Century Fox Film Corp. , 3 NY2d 395, 404-05 [1957] ). When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party ( Pearson v. Dix McBride , 63 AD3d 895, 883 [2nd Dept 2009] ; Robinson v. Strong Mem. Hosp. , 98 AD2d 976 [4th Dept 1983] ). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court's directing judgment in movant's favor as a matter of law notwithstanding sufficiency of opposition or lack thereof ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [Ct App 1985] ). Once movant's burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible evidence, the existence of a material factual issue in dispute requiring a fact-finder's determination at trial (see Friends of Animals v. Associated Fur Mfrs ., 46 NY2d 1065, 1067 [Ct App 1979] ; see also Alvarez v. Prospect Hosp. , 68 NY2d 320 [Ct App 1986] ; Zuckerman v. Citv of New York , 49 NY2d 557 [Ct App1980] ). Opposition papers relying upon general overbroad allegations or mere conclusory immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial will fail to satisfy burden to defeat summary judgment (Fileccia v. Massapequa Gen. Hosp., supra ; Bustamonte v. Koval , 98 AD2d 739 [2d 1983] ; Pan v. Coburn , 95 AD2d 670 [1st Dept 1983] ; Himber v. Pfizer Labs. , 82 AD2d 776 [1st Dept 1981] ; Baldwin v. Gretz , 65 AD2d 876 [3d Dept 1978] ; Century Ctr. Ltd. v. Davis , 100 AD2d 564 [2d Dept 1984] ). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied ( Moskowitz v. Garlock , 23 AD2d 943 [3d Dept 1965] ).
However, most defendants in consumer debt cases are pro-se. They do have their day in court by appearing to oppose the motion for summary judgment in oral argument as well as in writing if they so choose. A more sophisticated and computer-savvy defendant appears in court to tell their side of the story to argue their opposition armed with self-help websites. Albeit, most pro-se defendants generally have difficulty understanding the legal concept of summary judgment.
Where movant for summary judgment is a third-party debt buyer assignee (hereinafter, Assignee) as plaintiff in a consumer credit suit, it must establish standing to pursue a claim in admissible form (see Palisades Collection, LLC v. Kedik , 67 AD3d 1329 [4th Dept 2009] ; see also Cach, LLC v. Sliss , 28 Misc 3d 1230[A], 958 NYS2d 59, 2010 NY Slip Op 51557[U] [Auburn City Ct 2010] ). To viably establish standing Assignee must provide in proper evidentiary form, specific, exacting, itemized, enumerated, precise complete chain of title of each assignment beginning with original creditor and continuing to the current Assignee plaintiff ( CACH LLC v. George , 56 Misc 3d 591, 52 NYS 3d 214, 2017 NY Misc LEXIS 1732, 2017 NY Slip Op 27155 [Nassau Dist Ct 2017] ). Assignee must also establish in admissible form: that defendant's specific account was included in the assignment (see Citibank [S.D.], N.A. v. Martin , 11 Misc 3d 219, 807 NYS 2d 284 [Civ Ct, NY County 2005] ); that defendant was given notice of the assignment to plaintiff Assignee ( Tri City Roofers v. Northeastern Indus. Park , 61 NY2d 779, 780 [1984] [actual notice of assignment is necessary to charge defendant with duty to pay debt to plaintiff Assignee]; see also CACH LLC v. Fatima , 32 Misc 3d 1231[A], 936 NYS 2d 58, 2011 NY Slip Op 51510[U] [Nassau Dist Ct 2011] ). To prevail on a breach of contract cause of action to recover amounts overdue and owing, plaintiff-creditor must provide sufficient evidence to prove an agreement which debtor accepted by her use of a credit card issued by plaintiff; that defendant made payments on same credit card, and defendant breached her agreement with plaintiff when she failed to make the required payments as they became due as per the accepted agreement, to wit, credit card agreement ( Citibank (S. Dakota), N.A. v. Keskin , 121 AD3d 635, 636 [2d Dept 2014] ; Citibank (S. Dakota), N.A. v. Brown-Serulovic , 97 AD3d 522, 524 [2d Dept 2012] ; Citibank (S. Dakota) N.A. v. Sablic , 55 AD3d 651, 652 [2d Dept 2008] ). Unlike an original creditor, sufficiency of evidence is often problematic for Assignees as plaintiffs. Assignees are often less likely to have satisfactory proof in admissible form to establish standing to pursue a breach of contract claim, often lacking the original initiating documents to establish the contractual agreement with defendant. Consequently, this lack of documentation relegates Assignees to rely more heavily on the second cause of action upon which to support judgment for collection of defaulted debt, account stated.
" ‘An account stated is an agreement between [the] parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due’ ( Fleetwood Agency, Inc. v. Verde Elec. Corp. , 85 AD3d 850, 851 [2011], quoting Jim-Mar Corp. v. Aquatic Constr. , 195 AD2d 868, 869 [1993] ; see Branch Servs., Inc. v. Cooper , 102 AD3d 645, 646 [2013] ; Citibank [S.D.], N.A. v. Brown-Serulovic , 97 AD3d 522, 523 [2012] ; American Express Centurion Bank v. Cutler , 81 AD3d 761, 762 [2011] ). To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection (see Castle Oil Corp. v. Bokhari , 52 AD3d 762 [2008] ).
In the case of existing indebtedness, the agreement may be implied as well as express (see Jim-Mar Corp. v. Aquatic Constr. , 195 AD2d 868, 869 [3rd 1993] ; Chisholm-Ryder Co. v. Sommer & Sommer , 70 AD2d 429 [1979] ). ‘An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account ( American Express Centurion Bank v. Cutler , 81 AD3d 761, 762 [2nd Dept 2011] ; see Citibank [S.D.], N.A. v. Brown-Serulovic , 97 AD3d 522, 523 [2nd Dept 2012] ; Landau v. Weissman , 78 AD3d 661, 662, 913 NYS2d 107 [2010] ).’ "
(CACH v. George at 1066).
As indicated, Assignee may satisfy its burden to make a prima facie showing of entitlement to summary judgment on an account stated cause of action by tendering sufficient admissible evidence to show that defendant received Assignee's account statements "for payment and retained these statements for a reasonable period of time without objection" (see Castle Oil Corp. v. Bokhari , 52 AD3d 762, 861 NYS2d 730 [2008] ; Fink, Weinberger, Fredman, Berman & Lowell, P.C. v. Petrides , 80 AD2d 781, 437 NYS2d 1 [1st Dept 1981] ). Pursuant to CPLR 3212 (b) affidavits either in support or opposition to summary judgment must be made by someone with personal knowledge of the facts. An affidavit by an officer of the originating credit card company must be presented to attest to the facts of the origination of the agreement and the assignment. Assignee's affidavit by its employee or officer will not suffice ( JMD Holding Corp v. Cong. Fin. Corp , 4 NY3d 373 [2005] ; see also GTF Mktg. v. Colonial Aluminum Sales , 66 NY2d 965, 967 [1985] ). A conclusory affidavit by an affiant lacking in personal knowledge of the facts will fail to satisfy the prima facie burden for summary judgment ( Vermette v. Kenworth Truck Co. , 68 NY2d 714 [1986] ). Rather, to overcome the burden of prima facie showing movant must include facts in admissible form that establish the original agreement, any revisions and that those notification documents were mailed to the defendant and copies of credit card statements included in moving papers, which were received and retained by defendant for a period of time without protest or objection ( Castle Oil Corp. v. Bokhari , 52 AD3d 762 [2nd Dept 2008] ). Failure to protest or object to any of the attached statements, evidence tacit acceptance by defendant of original agreement and revisions thereof. Defendant's subsequent use or any payments made to the credit card may provide further evidence of acceptance by defendant of the original and/or revised terms of the credit agreement ( Chase Manhattan Bank [Nat. Ass'n], Bank Americard Division v. Hobbs , 94 Misc 2d 780 [Civ Ct Kings County 1978] ; Citibank [S.D.] N.A. v. Roberts , 304 AD2d 901 [3d Dept 2003] ). Credit card account statements are deemed to be generated in the regular course of business, therefore admissible as business records ( Johnson v. Lutz , 253 NY 124 [Ct App 1930] ; Citibank [S.D.] N.A. v. Roberts , 304 AD2d 901 [3d Dept 2003] ) and self-authenticating ( Portfolio Recovery Assoc., LLC v. Lall , 127 AD3d 576 [1st Dept 2015] ; Merrill Lynch Bus. Fin. Servs. Inc. v. Trataros Constr., Inc. , 30 AD3d 336 [1st Dept 2006], lv denied 7 NY3d 715, 859 NE2d 920, 826 NYS 2d 180 [2006] ). Failure to satisfy these requirements requires denial of summary judgment notwithstanding the sufficiency of opposition or lack thereof ( Palisades Collection, LLC v. Gonzalez , 10 Misc 3d 1058[A], 809 NYS 2d 482, 2005 NY Slip Op 52015[U] [Civ Ct NY County 2005] ; Winegrad v. New York Univ. Med. Center at 853).
In the instant matter, plaintiff fails to provide admissible evidentiary proof that the defendants' debt was validly assigned from Synchrony to plaintiff. Therefore, failing to establish standing to sue defendants. Plaintiff fails to provide affiants with personal knowledge. Rather, plaintiff as assignee provides conclusory affidavit from its own "Legal Administrative Officer" as a custodian of records; "Bill of Sale" from Synchrony which fails to itemize, specify or reference the defendants' relevant credit card account subject of this suit; "Affidavit of Sale" by Synchrony's "Affidavit Documentation Specialist"; and monthly credit card statements purportedly mailed to defendants. Collectively, the documents presented fail to provide requisite proof. Both affiants executing the presented affidavits fail to serve as a basis to show that the annexed credit card billing statements, although self-authenticating, are connected or were included in the sale and assignment from Synchrony to plaintiff. The proffered "Bill of Sale" fails to specifically provide chain of title from Synchrony to plaintiff of the defendants' specifically enumerated and itemized credit card account and therefore is insufficient to prove that this defendants' account being sued upon was included in the "Receivables" allegedly purchased and assigned to plaintiff on November 20, 2015. Moreover, fatal to the granting of this motion as a matter of law as against defendants, plaintiff failed to provide any mention in its documentary evidence presented as to whether defendants were ever notified of the assignment of their credit card account from Synchrony to plaintiff. Consequently, plaintiff fails to overcome its burden for a showing of prima facie entitlement to judgment as a matter of a law, thereby, regardless of the defendants' opposition, precluding the granting of the drastic remedy of summary judgment.
For the foregoing reasons, plaintiffs Motion for Summary Judgment is DENIED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.