Capital One Bank v Stewart
Annotate this CaseDecided on January 7, 2015
Civil Court of the City of New York, Richmond County
Capital One Bank a/a/o Providian, Claimant,
against
Frances M. Stewart, Defendant.
37082/04
Attorney (Plaintiff)
Eltman, Eltman & Cooper
140 Broadway 26th Floor
New York, New York 10005
Defendant (defaulted)
Philip S. Straniere, J.
"It's deja vu all over again."[FN1]
Plaintiff, Capital One Bank as assignee of Providian, commenced this consumer credit action against the defendant, Frances M. Stewart, alleging that the defendant failed to make payments as agreed in regard to a credit card agreement. Defendant failed to appear or answer and the plaintiff obtained a default judgment on November 5, 2004.
In June 2012 the court received an "Assignment of Judgment" form allegedly transferring the judgment to Merriman Investments, LLC. The form was signed by "Rory Boyle, Managing Member, Merriman Investments, LLC, by Power of Attorney."[FN2] There [*2]was no reference in the document to any entity other than Capital One, as the plaintiff being the owner of the debt.
By a short-form order dated October 24, 2012, the court rejected the filing because the "limited power of attorney" granting Boyle the authority to sign the form, was from NCO Portfolio Management, Inc., as the "seller" of the debt. The document gave Merriman Investments the power of attorney to sign documents in regard to this litigation. There was no showing how or when NCO Portfolio Management became the owner of the debt or when Merriman Investments became the owner of the debt.
In fact, by its terms, the limited power of attorney was to last only for one year, from its date, December 9, 2010. This means on the date the assignment of judgment was signed, June 18, 2012, the limited power of attorney was no longer effective. There is also another error in the limited power of attorney in that paragraph 2 "Effectiveness" refers to paragraph 5 for the duration of the agreement when paragraph 4 is where that information is contained.
In rejecting the filing two years ago in 2012, the court noted that it was submitted by Stephen Einstein & Associates as attorney of record, yet the court file listed Mel Harris & Associates as the attorney of record at that time.
On January 18, 2013, the court received a consent to change attorney transferring the file from Mel Harris to Stephen Einstein, Rory Boyle signed the consent on behalf of Merriman Investments. Although there was still no showing that Merriman Investments was the owner of the debt. It also means that on the date the assignment of judgment was submitted to the court by Einstein, that law firm was not yet attorney of record.
On October 10, 2014, the court received a new "Affidavit and Assignment of Judgment." It is signed apparently by Rory Boyle on behalf of Merriman Investment on October 6, 2014. The court says "apparently" because there are three names on the affidavit and in the acknowledgement, Caitlin Boyle, Faith Braverman and Rory Boyle all of whom could have signed the document, but none of the three is either circled or in any other way designated as the person signing the document.
There is still no documentation to establish how the debt got from Capital One Bank to NCO Portfolio Management, Inc., then to Merriman Investments, LLC. Nor is there any evidence as to how it got from Providian to Capital One.
Considering the prior submission in June 2012 indicated the limited power of attorney would only be valid for one year from its December 2010 date, how is it still in effect in October 2014?
Also, the October 2014 submission states that Eltman, Eltman & Cooper PC is the attorney of record for Merriman Investments, yet there is no showing that there was a consent to change attorney filed as required by CPLR §321. The court file still has Stephen [*3]Einstein as attorney of record.
The clerk is again ordered to reject the assignment of judgment.
Plaintiff must correct these defects on or before May 1, 2015 and establish the chain of assignment from Providian to Merriman Investments, the authorization of the parties signing the documents to do so, and the name of the current attorney of record. In addition, plaintiff must comply with recently effective Rule §208.14-a and provide the documentation required by that rule on or before May 1, 2015.
The plaintiff will appear at the courthouse on May 5, 2015 at 9:30 AM in Part 56 to establish that it is in compliance with this order. If the documentation is not provided, the court will vacate the default judgment and dismiss the action.
The foregoing constitutes the decision and order of the court.
Dated:January 7, 2015
Staten Island, NYHON. PHILIP S. STRANIERE
Judge, Civil Court Footnotes
Footnote 1:Quote attributed to Yogi Berra in regard to Roger Maris and Mickey Mantle hitting back-to-back home runs.
Footnote 2: The court notes that in another recently analyzed file, Great Seneca Financial Corp. v Ogunbawle, Index# 4935/05, Rory Boyle is signing documents on behalf of Palisades Acquisitions XVI, as the assistant secretary of Eltman, Eltman, & Cooper. Boyle has served in that capacity on numerous files involving Merriman Investments and Eltman, Eltman & Cooper.
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