Summary
holding that in consumer credit litigation, the assignor of the debt or judgment must notify the debtor of the assignment
Summary of this case from Rumfelt v. Midland Funding LLCOpinion
No. 17339/10.
11-18-2014
In the Matter of the Application of PINPOINT TECHNOLOGIES, LLC to File in Excess of Eighty Notice of Assignment of Judgment Forms in Civil Court Richmond County.
Opinion
Currently before the court are applications from Pinpoint Technologies, LLC and Pinpoint Technologies Too, LLC (Pinpoint) to file with the clerk of the Civil Court, Richmond County, in excess of eighty (80) “Notice of Assignment of Judgment” forms all dated September 23, 2014, indicating that as of August 11, 2014, these judgments have been sold to Libra Equities, LLC (Libra). In addition, each notice contains a paragraph designating a change of attorney from the attorney of record to Houslanger & Associates, PLLC.
All of the Notice of Assignment of Judgment forms have four numbered paragraphs containing the following information:
1. That Michael Young is a member of PINPOINT TECHNOLOGIES, LLC (or PINPOINT TECHNOLOGIES TOO, LLC, ) the Plaintiff/Assignor in the above entitled action and in that capacity is authorized to make this Notice.
2. That on (DATE), this court entered a Judgment in favor of the Plaintiff for the sum of (AMOUNT) in this action under Index No. (NUMBER).
3. The current judgment creditor to whom this debt is owed is LIBRA EQUITIES, LLC, and in exchange for valuable consideration paid, was assigned on (DATE) the rights, title and interest in the aforementioned Judgment for the original Judgment Creditor, Plaintiff/Assignor PINPOINT TECHNOLOGIES, LLC (or PINPOINT TECHNOLOGIES TOO, LLC ).
4. That upon information and belief, Assignee LIBRA EQUITIES, LLC, will be represented by new counsel of record Houslanger Associates, PLLC, 372 New York Avenue, Huntington, NY, 11743.
The documents are each dated “9/23/2014” and signed in New York, New York by “Michael Young, Member” of either PINPOINT TECHNOLOGIES, LLC, or PINPONT TECHNOLOGIES TOO, LLC. This is followed by an “MSH File” number. The court believes that the MSH File number is the number used by the current attorney of record Mel S. Harris and Associates, LLC.
The court should point out that only three of the files have index numbers after 2010. The rest of the files have index numbers commencing in 2004 and ending in 2009. As it is the policy of the clerk of the court to only keep in on-site storage space all open litigation along with closed files from the current year and the three previous years, the court is only able to review those three files. All other closed files have to be retrieved from storage off-site.
As this is not the first time this court, and presumably ever other court handling third party debt buyer cases has been flooded with such applications, and owing to the amount of labor costs the court system must absorb in order just to retrieve these files for these frequent ministerial filings by third party debt buyers, perhaps a fee should be imposed by the legislature or the court system for this service. Because these third party debt buyers historically pay only pennies on the dollar to purchase consumer credit accounts, even those in judgment, the institution of even some minimal fee might reduce the number of these bulk sales by making it cost prohibitive for these debt collecting businesses.
After reviewing the documentation, for the reasons set forth below, all of these Notice of Assignment forms are rejected.
1. An Assignment of Judgment Must Contain an Acknowledgment.
Civil Practice Law and Rules(CPLR) § 5019(c) sets forth the requirements for the format to be followed on an assignment of judgment. It provides:
Change in judgment creditor. A person other than the party recovering a judgment who becomes entitled to enforce it, shall file ... a copy of the instrument on which his authority is based, acknowledged in the form required to entitle a deed to be recorded....
The requirements of an acknowledgement and the form to be used is set forth in Real Property Law (RPL) § 298 and § 309–a for use within New York and § 299 and § 309–b if the signature is taken outside New York.
The court notes that what has been submitted is not actually the “assignment” document, nor is there as “bill of sale” or any other document identifying the original debt with sufficient information for the debtor to recognize the account, the assignment history to Pinpoint, and the transfer of the particular account to Libra. The question then arises are the Notice of Assignment forms “a copy of the instrument on which his authority is based” as required by the statute?
Black's Law Dictionary(8th ed.) defines an “instrument” as “a written legal document that defines rights, duties, entitlements, liabilities, such as a contract, will, promissory note or share certificate.” Giving a liberal interpretation to both the definition of instrument and the notice of assignment, it would appear that it would qualify as an “instrument” under the statute.
In Portfolio Recovery Associates v. Lall, 41 Misc.3d 128(A) (2013), the court held that a “notice of assignment” and an “Affidavit of Sale of Individual Account” along with other evidence were sufficient to establish the standing of the plaintiff that it was the assignee of the debt when it commenced its consumer credit action. That litigation dealt with the standing of Portfolio to bring the action and dealt with a notice of assignment of the account and not the judgment. The court also noted that notice of the assignment was sent to the defendant. The above being said, this case does not address a situation arising under CPLR § 5019(c).
In the current submission, Pinpoint has only produced the notice of assignment of the judgment and no other documentation. There is no evidence that the notice was sent to the debtor. As noted below, in the three files to which the court currently has access, there is no documentation establishing how Pinpoint became the holder of the debt. If the court were to sua sponte address this issue, it would be obvious that Pinpoint would lack the ability to prove it was the owner of the debt and had standing to commence any of these actions.
Accepting the fact that these notice of assignment forms contain sufficient information to be the equivalent of an assignment, these submissions, which allegedly were signed in New York, are neither notarized nor acknowledged and therefore are not in compliance with the statute.
2. There Is No Proof that the Assignee is a Licensed Debt Collector.
In order for Libra, the alleged debt buyer, to attempt to enforce these judgments and collect on the judgment debt, Libra must establish that it is licensed as a “debt collector” as it is, by its own statement, succeeding to Pinpoint's “right, title and interest” in the judgment. Pinpoint in its complaint was required to plead it was licensed as a debt collector [CPLR § 3015(e) ] and that statute makes the failure to plead this status as a defense which may be asserted in a CPLR § 3211 motion. Debt collectors in the City of New York must be licensed [New York City Administrative Code § 20–488 et seq ; 6 New York Code, Rules & Regulations § 5–76].
Therefore in order for an entity purchasing an account either pre-judgment or post-judgment to take steps to either collect the debt or enforce the judgment, its licensing status must be pleaded and disclosed in the assignment or in a document such as the Notice of Assignment being filed in these actions. It would make no sense for the original entity bringing the action to have to be licensed as a debt collector, have to plead that licensing in its complaint, and then be able to execute an assignment, turn the account over to an unlicensed entity for collection and thereby avoid the consumer protection aspects of the statute. Without having that licensing information in these documents, the court and the debtor cannot determine the validity of the debt collector's status.
This would not be necessary if the debt buyer, Libra, does not intend to take any steps to enforce these judgments and merely bought this “paper” to decorate its office walls. Somehow the court does not believe that Libra bought these accounts solely for the enjoyment of having thousands of dollars of uncollectible debt on its books. Courts have determined that any collection efforts by entities other than the original creditor, must be licensed [Centurion Capital Corp. v. Guarino, 38 Misc.3d 1216(A) (2012) ; Centurion Capital Corp. v. Druce, 14 Misc.3d 564 (2006) ]. In all of the cases currently before the court for review, neither Pinpoint entity was an original creditor so, as a debt buyer, each entity was required to be licensed by the New York City Department of Consumer Affairs and to plead that fact in the complaint.
Pinpoint must resubmit these Notices with Libra's licensing information.
3. There is No Proof of the Legal Status of Either the Assignor or Assignee and that the Assignee is Authorized to do Business in New York.
In order to utilize the New York court system a corporation or limited liability company such as Pinpoint or Libra must plead they are licensed to do business in New York as required by the Business Corporations Law and the Limited Liability Company Law. Neither the court nor the debtor should have to guess if the assignee is in fact authorized to do business in New York as either a domestic or foreign entity. This should be disclosed in the assignment or Notice of Assignment.
Pinpoint must resubmit the Notices disclosing the basis of Libra's authority to utilize the New York court system to enforce this judgment.
4. As a Limited Liability Company, the Authority of the Member to Sign the Notice of Assignment Forms Must be Established.
Michael Young as signed all of the notices as a “member” of both Pinpoint and Pinpoint Too. Because a Michael Young is a notary on a number of documents submitted by Mel S. Harris in the initial litigation, the court must question exactly what is Michael Young's status. As noted, Young has signed all 80 plus submissions to this court, did he also sign equivalent amounts of documents in the other counties of New York City? At what point do his actions qualify as “robo-signing?”
Limited Liability Company Law § 412 sets forth the agency authority of member or managers of an LLC. It states that:
(a) Unless the articles of organization ... provide that management be vested in a manager or managers, every member is an agent of the limited liability company for the purpose of the business, and the act of every member, including the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business of the limited liability company binds the limited liability company, unless (i) the member so acting has in fact no authority to act for the limited liability company in the particular matter and (ii) the person with whom he or she is dealing has knowledge of the fact that the member has no such authority....
(c) An act of a member or manager that is not apparently for the carrying on of the business of the limited liability company in the usual way does not bind the limited liability company unless authorized in fact by the limited liability company in the particular matter.
It would seem that Pinpoint must establish that Pinpoint does not have a “managing” member and Michael Young had the authority to sign a notice of assignment of this debt on behalf of the LLC. The way the statute is structured, the LLC would be bound by the action and the transaction would be valid even if the member lacked the authority to bind the entity. Such a result may be acceptable to the assignee, however, that is not an appropriate response in the consumer credit situation.
The consumer-debtor may want to challenge the authority of the LLC to not only commence an action, but to assign the account or the judgment. If the member lacks the authority to act, then it would seem that the assignment would be defective and the assignee would lack standing to enforce the judgment. Because there is no method to challenge whether the member had the authority if that becomes an issue in the litigation, it makes sense to require an LLC to affirmatively attach either a copy of the certificate of authority creating the LLC or a resolution by the LLC not only authorizing the member to sign the assignment or notice of assignment but to also authorize the sale of the account or judgment.
If the LLC or its member lacks the authority to purchase debt and to sue on it, then it cannot be using the court system as part of its collection model. Without an affirmative representation of the authority of the LLC or the member in a separate document, the court cannot know any of this and because over 90% of appearing defendants are unrepresented, it is unlikely that they would raise the issue or seek discovery of the information.
Pinpoint and Pinpoint Too both need to submit a resolution on each file authorizing Young to sign as a member and the sale of the particular judgment to Libra.
5. Plaintiff is Required to Serve a Copy of the Notice of Assignment on the Defendant.
This court has held that in consumer credit litigation, the assignor of the debt or in this case of a judgment has an obligation to serve a notice of the assignment of the debt on the defendant [Chase Bank, USA, NA v. Cardello, 27 Misc.3d 791 (2010) ; Tri City Roofers, Inc. v. Northeastern Industrial Park, 61 N.Y.2d 779 (1984) ]. The notice must be from the original creditor, or the judgment creditor, to the defendant at the defendant's last known address. It should contain information informing the defendant that the debt has been sold, and include the name, address and contact information of the assignee, as well as similar information for counsel of the assignee, if there is a change of attorney.
There is no indication that the plaintiff has given notice of the assignment to the defendant containing the above information, thereby making the notice of assignment ineffective should the defendant make payment to the assignor. It would seem that Libra the purchaser of the judgment would want to ensure that the defendant has been notified by the plaintiff to contact Libra to arrange payment.
6. The Attempt to Change Attorney's is Defective.
CPLR § 321(b) provides the method for changing an attorney of record. In subdivision (1) it requires that a consent to change attorney be signed by the outgoing attorney and signed and acknowledged by the party.
The submission is not signed by the outgoing attorney, unless Michael Young, is an attorney in Mel S. Harris' office and authorized to sign the form. He signed the form as “member of Pinpoint Technologies, LLC” and not as a member of the Harris firm. Although the court believes that Young has appeared as a notary on documents submitted by Harris to the court as part of some of these actions, there is no indication if he is an attorney. So on its face the form is defective as it was not signed by the outgoing attorney. Mel S. Harris.
The form is not acknowledged by Pinpoint the assignor and plaintiff of record. Interestingly CPLR § 321(b) uses the term “acknowledged” the same term used in CPLR § 5019(c) above, but the change of attorney statute does not require the acknowledgment to be in the form set forth in the RPL.
There is also a question as to who is to acknowledge the change of attorney, Pinpoint or Libra? This is a question because the date of the Notice of Assignment is September 23, 2014, and Pinpoint no longer owned the debt on that date as the Notice of Assignment says it was sold to Libra on August 11, 2014. This means that the change of attorney has to be signed by a representative of Libra, the new judgment creditor, and not Pinpoint.
This would seem to mean that Mel Harris would have to sign the change of attorney as outgoing attorney for Libra and not for Pinpoint, although the language of the Notice of Assignment seems to indicate that Houslanger and Associates is the attorney of record for Libra. Although not required by the statute, it is a common practice for the incoming attorney as well to sign the consent form. Houslanger has not done so.
A further problem with the attempt to change attorney is that CPLR § 321(b)(1) requires that the notice be served upon all parties to the action. There is no proof that service was made upon the defendant. Perhaps a better course of action would be for plaintiff to seek to change attorney by court order pursuant to CPLR § 321(b)(2) which would also require notice to the defendant.
The attempt to change attorney is not effective. It fails to comply with the statute. Mel S. Harris and Associates remains attorney of record.
7. Other Problems.
As noted above, of the over 80 cases currently before the court, the actual file for only three of them is physically present in the courthouse. After review of them, the following problems exist in these files.
i) Pinpoint Technologies, LLC v. Glover (Index No. 15189/10).
This action was commenced in 2010. It alleged that Pinpoint had purchased the account from GE Capital Corp/The Gap on an undisclosed date and for an undisclosed amount. The complaint sought $362.67 plus interest from April 25, 2006. There was no allegation as to whether the statute of limitations had run on the debt or any information concerning the state of incorporation of GE Capital Corp ., or if the credit agreement either fixed a statute of limitations or referred to a specific state's law to be applied to the agreement.
Defendant defaulted in appearing and answering and a judgment for $732.37 was entered against the defendant on November 24, 2010. It consisted of the balance of $362.67 due, plus interest at 9% from April 25, 2006 in the amount of $149.70, costs and disbursements of $220.00.
In August 2011, defendant filed an order to show cause to vacate her default. It was settled by a “so ordered” stipulation on August 24, 2011 vacating the judgment. Plaintiff reduced that amount of the claim to $500.00 and defendant agreed to pay $50.00 a month.
In November 2011, defendant filed another order to show cause seeking to modify the terms of the stipulation. A new stipulation of settlement was “so ordered” on November 30, 2011 in which the defendant now agreed to pay $600.00 at $100.00 a month. Apparently no payments had been made under the terms of the first stipulation.
Defendant defaulted on the terms of the second stipulation and plaintiff entered a judgment in the amount of $775.66 on March 22, 2012. Based on the information in the judgment, defendant made no payments pursuant to either stipulation.
The stipulation required that ten day written notice to cure any default be given to the defendant prior to the entry of any judgment. Plaintiff has attached an affidavit of mailing the ten day notice on February 21, 2012. It alleges the defendant failed to pay the January 27, 2012 pay as required by the stipulation.
There is one problem. Plaintiff has not filed a copy of the ten day notice. Plaintiff only filed an affidavit of mailing. Both documents are needed. Plaintiff in order to enter a judgment based on a default in the terms of the stipulation must establish that it complied with its obligations under that agreement. A copy of the ten day notice to cure with proof of mailing are required. As such, the judgment is technically defective. As over two years have passed since the entry of the default judgment, and the defendant has not sought any relief from the court, the court will not set it aside. However, the court will preserve that as an issue to be raised by the defendant, should she at some time in the future seek to vacate her default.
The attorney of record on all of these pleadings was Mel S. Harris and Associates.
ii) Pinpoint Technologies Too, LLC v. Primavera (Index # 17339/10).
This action was commenced by Pinpoint Technologies Too in August 2010 alleging that it is the purchaser and assignee of a “Promissory Note” # 2009080197715 from Citi Financial. Plaintiff sought $2,773.52 from defendant with interest from August 26, 2006. There is no allegation as to whether the statute of limitations has run or as the state of incorporation of Citi Financial or if the credit agreement either set a statute of limitations or was subject to the law of a particular state.
Defendant defaulted in appearing on November 1, 2010, having answered initially on October 13, 2010. Upon a representation by plaintiff's counsel that the amount due was a “sum certain,” the matter was marked “inquest clerk” and subsequently the clerk entered a default judgment against the defendant for $4,116.46 which included the $2,773.52 claimed in the complaint, plus interest from August 26, 2006 at 9% for a total $1,122.94 with costs and disbursements of $220.00.
Included in the documents plaintiff submitted is the judgment on inquest clerk form along with an affidavit of merit and an affidavit of purchase of account both from Todd Fabacher, the custodian of plaintiff's records in New York, both of which are notarized on January 4, 2011 by Michael Young, who presumably is the same person signing all of these Notice of Assignment forms as a “member of Pinpoint.” The affidavit of merit states the cause of action accrued in Minnesota which has a four-year statute of limitations.
Based on this information, this action would be time barred. The complaint alleges the default occurred on August 26, 2006. The summons and complaint were filed with the clerk of the court on August 30, 2010, more than four years after the date of the alleged breach. Civil Court Act § 400 states an action is commenced when the summons and complaint is filed, therefore this action was untimely from its inception. The affidavit asserting that the statute of limitations has not run is false.
The problem is that the defendant never raised the statute of limitations as a defense. He actually acknowledged the debt but claimed financial hardship as the reason for nonpayment. However, because the plaintiff made no allegations in the complaint concerning the state of incorporation of Citi Financial or the statute of limitations governing the transaction, there was no way for the court nor the defendant to even think that this might be an issue because presumably New York's six-year statute of limitations applied.
There is another problem with the documents submitted to obtain the inquest clerk judgment. The affidavit of merit states that the debt arose from a “Retail Charge Account Agreement” and not from a “Promissory Note” as alleged in the complaint. Clearly they are not the same thing. If sophisticated plaintiff's counsel cannot distinguish between the two, how can the court expect an unsophisticated debtor to know the difference?
This action is dismissed because counsel for plaintiff failed to provide this information to the court and upon reviewing the file prior to filing this action would have known that the action was time barred and should not be commenced.
The attorney of record on all of these pleadings was Mel S. Harris and Associates.
iii) Pinpoint Technologies Too, LLC v. Gnyp (Index # 4058/12).
This action was commenced by Pinpoint Technologies Too in May 2012 alleging that it is the purchaser and assignee of a Retail Charge Account from JP Morgan Chase Bank. The plaintiff sought $823.54 from August 4, 2006. There is no allegation in the complaint as to the state of incorporation of JP Morgan Chase and if the statute of limitations has run or if the agreement set a statute of limitations or which state's law applies.
The defendant defaulted in appearing and answering and plaintiff requested that the clerk enter a default judgment for $1,495.90 which included the $823.54 alleged in the complaint with interest from August 4, 2006 at 9% in the amount of $447.36 along with $225.00 in costs and disbursements.
The application for a default judgment contains an affidavit of merit and an affidavit of the purchase of account signed by Todd Fabacher custodian of plaintiff's records in New York. Both of these affidavits were notarized by Michael Young, presumably the same person who signed the Notice of Assignment forms as a “member of Pinpoint.” In both this and the prior action Fabacher asserts in his role as custodian of Pinpoint's records he has personal knowledge of the account. This of course is not exactly true. He may have personal knowledge of how Pinpoint, the assignee of the accounts maintains them and of their books and records, but he certainly has no personal knowledge of the original creditor's books and records. His information in regard to the original accounts is hearsay and would be inadmissible at trial.
The affidavit of merit alleges that the cause of action accrued in Ohio which has a six-year statute of limitations. If the cause of action accrued on August 4, 2006 then this action was timely commenced when plaintiff filed the summons and complaint with the clerk of the civil court on May 31, 2012.
If the court was to apply the newly enacted Rules of the Chief Administrative Judge governing default judgments, the plaintiff in each of these three actions would not have submitted sufficient information to obtain a default judgment from the court. The applicability of these new Rules is discussed in section # 8 below.
The attorney of record on all of these pleadings was Mel S. Harris and Associates.
7. What Does the Above Sample Establish.
If these three files are typical of those owned by Pinpoint and sold to Libra, then there are serious problems which would question the effectiveness of any the judgments entered against these 80 plus defendant.
8. New Default Rules and Assignment of Judgments.
The Chief Administrative Judge has issued new rules and guidelines with which a plaintiff must comply in order to enter a default judgment in a consumer credit transaction in New York State. An application to the clerk to enter a default judgment pursuant to CPLR § 3215(a) as of October 1, 2014 will have to have an affidavit from an original creditor in original creditor actions. After October 1, 2014 in an application from a debt buyer involving debt purchased from an original creditor there will have to be an affidavit from the debt buyer as well as one from the original creditor. An affidavit of a debt seller would be needed from every debt seller who owned the debt prior to the plaintiff.
Effective July 1, 2015, all of the affidavits in the rules will be required to enter a default judgment notwithstanding that the debt was purchased from the original creditor before October 1, 2014.
Clearly had these rules been in effect when these actions were commenced, based on the three files reviewed and assuming most if not all of plaintiff's lawsuits will mirror the information included in them, plaintiff would not have been able to enter any default judgments against the respective defendants.
On the other hand, and not addressed by the new rules, is what documents are required when a default judgment and not the pre-litigation/ pre-judgment account is sold as happened with these 80 plus applications. Because these rules are designed to inform and protect consumers by making it easier for them to determine that the plaintiff in a consumer credit transaction actually owns an account of the defendant, it makes sense to apply the same rules to judgments sold after October 1, 2014 and after July 1, 2015.
At a minimum an affidavit from the debt seller and the statute of limitations affidavit should accompany an assignment of judgment. Because of the age of some of these judgments, it may be unfair to require an affidavit from the original creditor.
The language of the new rules supports this extension of the requirements to the sale of consumer credit judgments. The rules provide:
(b) Applicability. Together with any other affidavits required under NewYork law, the following affidavits shall be required as part of a default judgment application arising from a consumer credit transaction where such application is made to the clerk under CPLR 3215(a).
The original entry of the judgment was made by the plaintiff pursuant to “CPLR 3215(a) ;” it is a “consumer credit transaction;” an application is being “made to the clerk” to assign the “default judgment” to the new debt buyer. As noted above, to allow the sale of debt after the entry of the judgment without requiring the same documents needed to obtain the original judgment would allow debt buyers to circumvent the requirements of the new rules.
Conclusion:
The clerk is directed to reject all of these submissions until the plaintiff of record does all of the following: 1. An acknowledgment on each assignment of judgment application.
2. A copy of the actual assignment.
3. Proof of services of the assignment and notice of assignment form on the defendant.
4. Disclosure of the state of incorporation of Libra Equities, LLC and if a licensed debt collector, the listing of its license number.
5. A properly completed change of attorney form, including an acknowledgment, signature of the client, the outgoing attorney and incomingattorney along with proof of service on the defendant.
6. An affidavit of the debt seller as set forth in the new rules of the Chief Administrative Judge.
7. Documentation from the assignor limited liability company that the person signing the notice of assignment or assignment is authorized to sign the document.
Ordered that until all of the above is completed, assignee Libra Equities, LLC is stayed from taking any steps enforcing any of these judgments.
The foregoing constitutes the decision and order of the courts.