Anyone have access to New York Law Journal?

[LawKitty]

I'm trying to find information on a case that appears to only be listed in New York Law Journal, which requires a subscription to access.  I'm mostly curious because it appears to be a recent case where a JDB summary judgment was denied.  I'm interested in what they discuss regarding the affidavit and affiant in that case.  

 

Here is the only information I've been able to get in case someone has access to New York Law Journal:  The case is CACH, LLC v. Frank Sarkodie.

 

www.newyorklawjournal.com/.../CACH-LLC-Plai...

•  

New York Law Journal

Jan 27, 2015 - Civil Court, Bronx County, Part 35C; Judge Eddie McShan. Cite as:CACH, LLC v. Sarkodie, 10239/14, NYLJ 1202716070341

[CommoSGT]

I'm trying to find information on a case that appears to only be listed in New York Law Journal, which requires a subscription to access.  I'm mostly curious because it appears to be a recent case where a JDB summary judgment was denied.  I'm interested in what they discuss regarding the affidavit and affiant in that case.  

 

Here is the only information I've been able to get in case someone has access to New York Law Journal:  The case is CACH, LLC v. Frank Sarkodie.

 

www.newyorklawjournal.com/.../CACH-LLC-Plai...

•  

New York Law Journal

Jan 27, 2015 - Civil Court, Bronx County, Part 35C; Judge Eddie McShan. Cite as:CACH, LLC v. Sarkodie, 10239/14, NYLJ 1202716070341

@usctrojanalum  Maybe??

[Guest usctrojanalum]

Yes, I have a subscription to NYLJ... I remember reading this case as well. Let me go back through my e-mails and find it.

[Guest usctrojanalum]

• Civil Court, Bronx County, Part 35C
• Judge Eddie McShan

Cite as: CACH, LLC v. Sarkodie, 10239/14, NYLJ 1202716070341, at *1 (Civ., BX, Decided December 17, 2014)

10239/14

 

Judge Eddie McShan

 

Decided: December 17, 2014

 

ATTORNEYS

 

The plaintiff was represented by: Daniels Norelli Scully & Cecere, P.C.

 

The defendant was represented by: the pro bono Bronx Claro Project; and by Kevin Thomas, Esq., of the Bronx Lawyer for the Day Program.

 

DECISION/ORDER

 

Upon the foregoing cited papers, the Decision/Order of this Motion is as follows:

 

Plaintiff moved for an order granting summary judgment pursuant to CPLR §3212. Plaintiff commenced the instant action seeking to recover a balance of $1,969.91 allegedly due under a credit card agreement. Plaintiff also seeks to recover the amount due on an account stated cause of action. Plaintiff asserts that defendant has failed to remit monthly payments in accordance with the agreement he has with the original creditor. In support of its motion, plaintiff submits the affidavit of Angelica Martinez, the custodian of records for Square Two Financial Corporation, which Ms. Martinez avers to be the managing member of the plaintiff. Ms. Martinez attests that she is personally familiar with plaintiff's business records and the manner and method by which the plaintiff creates and maintains its records. She asserts that the plaintiff is contractually entitled to collect the amount owed by the defendant based upon a valid assignment it received from the original creditor, Bank of America, N.A./FIA CARD SERVICES, N.A./FLEET BANK (RI), N.A./MBNA AMERICA, N.A.

 

Ms. Martinez suggests that his review of the original creditor's records indicates that the retail agreement became binding and the defendant became responsible for paying the outstanding balance owed on the account upon the first use of the credit card. She also suggests that the original creditor's records indicate that account statements were mailed to the defendant advising him of his delinquency and demanded payment. She states that the delinquent statements contained a statement of what was due and owing and that the defendant never challenged the statements. Ms. Martinez asserts that the defendant owes plaintiff the amount of $1,969.91.

 

Plaintiff annexed a copy of the Bill of Sale and Assignment of Loans dated June 27, 2013 in support of its motion. Plaintiff also submitted an Affidavit of Assignment from Tracy Hopkins, a Bank Officer of the original creditor. Ms. Hopkins indicated that the defendant's account was included in the Bill of Sale and confirmed that the amount owed by the defendant at the time of the sale was $1,969.91.

 

Defendant opposed the application and argued that the plaintiff does not have the standing to bring this action. He suggests that the Bill of Sale does not adequately identify his account. Defendant asserts that he never received the statements included on this record because he moved from the address in 2008. He states that he did not acquiescence or agree to the amount owed because he never received the statements. Defendant states that he is unaware of the existence of a contract and notes that the plaintiff never provided a copy of the document. He also states that the plaintiff's contract claim must fail because there is no affidavit from the original creditor attesting to the terms.

 

Defendant further argues that plaintiff application must be denied because he never received notice of the assignment. He insists that there are many triable issues of fact. Defendant specifically denies the amount owed and questions plaintiffs standing to proceed.

 

It is well settled that a party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to eliminate any material issues of fact from the case (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]). The moving party's evidence, most important, must be in admissible form (Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 1067 [1979]). The nonmoving party must establish, by admissible evidence, the existence of a factual issue requiring a trial to determine the dispute (Zuckerman v. City of New York, 49 N.Y.2d 492 [1980]). The nonmoving party cannot provide conclusory allegations of fact or law to defeat a summary judgment application (Century Center Ltd. v. Davis, 100 AD2d564 [2d Dept 1984]). In considering whether to grant a summary judgment motion, a "drastic remedy" in this State, this court looks to find issues rather than to determine them, and to evaluate whether the alleged factual issues are genuine or lack substance (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 394, 404-05 [1957]).

 

The Court finds that plaintiff failed to meet its prima facie burden that it is entitled to a judgment as a matter of law. Winegrad, et al., 64 NY2d 851. Case law has determined that in cases involving debt claims, the movant for summary judgment, assignee of the debt claim, must prove that the defendant was given notice of the assignment, "including proof in evidentiary form of the date defendant was notified of the assignment" (Cach LLC v. Fatima, 32 Misc3d 1231 [A] [Dist Ct, Nassau County 2011], quoting Capara v. Charles Court Associates, 216 AD2d 722, 723 [3d Dept 1995]). This Court's search of the record concludes that the plaintiff did not submit any admissible evidence to suggest that the defendant was given notice of the plaintiff's purchase of the credit card account to which defendant was bound (Fatima, 32 Misc3d 1231 [A]; Portfolio Recovery Associates v. Lall, 41 Misc3d 128[A] [App Term, 1st Dept 2013]).

 

In addition, even if the plaintiff provided admissible proof that the defendant received notice of the assignment, the plaintiff fails to establish the existence of the contract or existence of the agreement that made the defendant liable for the debt based upon prior transactions. It is well established that ins the absence of the original contract, a plaintiff may establish that an agreement between the parties exists based upon prior transactions (Citibank [s.D.] v. Jones, 272 AD2d 815 [3d Dept 2000]). The agreement may be implied by the retention of an account statement without objection (Citibank [s.D.] 272 AD2d 815). Plaintiff on this record failed to include a copy of the original contract, if any, or the credit card agreement from the original lender. Plaintiff, as an assignee, stands in the shoes of the original creditor and must meet the same evidentiary requirements of the original creditor (Fatima, 32 Misc3d 1231 [A]). The Court is unable to substantiate Ms. Martinez's suggestion that the express terms of the agreement became binding on the defendant once he used the card (See for example Rushmore Recoveries X, LLC v. Skolnick, 15 Misc.3d 1139[A][District Court Nassau County 2007]).

 

Moreover, the plaintiff did not establish that it is entitled to a judgment as a matter of law on its account stated cause of action. The plaintiff failed to adduce evidence from an individual with personal knowledge that the account statements were properly mailed to the defendant and that the defendant failed to object to the documents. Ms. Martinez's affidavit is insufficient to establish personal knowledge of the original creditor's business and record keeping practices to establish that the statements were mailed and retained without objection by the defendant (Fatima, 32 Misc3d 1231 [A]). Plaintiff's suggestion that the defendant's failure to actually deny the facts constitutes a concession is without merit. The court does not consider the sufficiency of the nonmoving party's papers unless the moving party meets its prima facie burden (Winegrad, 64 NY2d 851).

 

In light of the foregoing, it is hereby

 

ORDERED AND ADJUDGED that the plaintiff's motion for summary judgment is hereby denied in its entirety; and it is further

 

ORDERED AND ADJUDGED that the Clerk shall schedule this matter for trial on February 18, 2015 at 9:30 a.m. and notify all parties of the scheduled date.

 

The foregoing shall constitute the decision and order of this court.

 

Dated: December 17, 2014

Read more: http://www.newyorklawjournal.com/id=1202716070341/CACH-LLC-Plaintiff-v-Frank-Sarkodie-Defendant-1023914#ixzz3pt0gFEYJ

[LawKitty]

Thanks!  I actually have an affidavit in a different case that has been notarized by Tracy Hopkins (who was the affiant in this NY case).  I have a couple other cases with affidavits where one affiant in one case is a notary on another affidavit in another case.  

[CommoSGT]

@LawKitty "a couple other cases with affidavits where one affiant in one case is a notary on another affidavit in another case."  Wasn't this part of the CFPB problem with Encore?

[Guest usctrojanalum]

The affiant/notary issue on it's face is not per se a problem.  You'd expect more than 1 person at a Corporation that large to be able to testify about records.

[debtzapper]

Interesting how the court says that in NY a MSJ is a "drastic remedy."  I don't think many other state courts see it that way, but I do like NY courts.  They hold debt collectors to a higher standard of proof than other states,