CACH LLC v George

[*1] CACH LLC v George 2017 NY Slip Op 27155 Decided on May 10, 2017 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 10, 2017
District Court of Nassau County, First District

CACH LLC, Plaintiff(s)

against

Jacob George, Defendant(s).



CV-015574-15



Daniels Norelli Scully & Cecere, P.C., attorneys for Plaintiff, One Old Country Road, Suite LL5, Carle Place, New York 11514, (516) 338-7520; Mary E. Sheridan, Esq., Jennifer E. Hudson, of Counsel, Local 237 Legal Services Plan, attorneys for Defendant, 216 West 14th Street, New York, New York 10011, (212) 924-1220.
Scott Fairgrieve, J.

The following named papers numbered 1 to 3

submitted on this Motion for Summary Judgment on March 24, 2017

papers numbered

Notice of Motion and Supporting Documents 1

Order to Show Cause and Supporting Documents

Opposition to Motion 2

Reply Papers to Motion 3

Plaintiff, as assignee of a consumer debt allegedly owed by defendant upon a credit card issued to him by GE Capital Retail Bank, commenced this action against defendant for breach of contract. Plaintiff now moves, pursuant to CPLR 3212, for summary judgment in the amount of $1,237.65, plus costs and disbursements. The motion is decided as follows.

The "drastic remedy" of summary judgment is appropriate only where there is no doubt as to the absence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). It is the movant's burden to establish prima facie entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact (Winegrad v New York Univ Med Cen., 64 NY2d 851, 853 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id.).

In assigned debt cases, a plaintiff-assignee must establish standing to pursue a claim by submitting proof in admissible form of a complete chain of assignment beginning with the original creditor (see Palisades Collection, LLC v Kedik, 67 AD3d 1329 [4th Dept 2010]; CACH, LLC v Sliss, 28 Misc 3d 1230[A] [Auburn City Ct 2010]). Plaintiff-assignee must also prove that defendant's particular account was included in the assignment (see Citibank [South Dakota], N.A. v Martin, 11 Misc 3d 219 [Civ Ct, New York County 2005]) and that defendant was given notice of the assignment (Tri [*2]City Roofers, Inc. v Northeastern Industrial Park, 61 NY2d 779, 780 [1984][actual notice of assignment necessary to charge defendant with duty to pay debt to assignee]; see also CACH LLC v Fatima, 32 Misc 3d 1231[A][Dist Ct Nassau 2011]). Failure to satisfy these requirements requires denial of summary judgment (see Palisades Collection, LLC v Gonzalez, 10 Misc 3d 1058[A][Civ Ct New York 2005]).

Here, plaintiff has failed to provide the necessary documentary proof establishing that defendant defaulted on credit card payments to the original creditor and that the resulting debt was validly assigned to it. In support of its application, plaintiff submits: an affidavit from its Custodian of Records, Signe Espinoza; an "Affidavit of Sale" from the original creditor's Collections Operations Representative, Tajesha Shaviss; a "Bill of Sale," which references the particular credit card account in question; and monthly credit card statements. The affidavits of Mr. Espinoza and Ms. Shaviss, however, cannot serve as a basis for the admission of the annexed billing statements as they lack any personal knowledge of the assignment or of the original creditor's credit card agreement with defendant, billing, mailing, or record keeping practices (see JP Morgan Chase Bank, N.A. v RADS Group, Inc., 88 AD3d 766 [2d Dept 2011]; PRA III, LLC. v Gonzalez, 54 AD3d 917 [2d Dept 2008]; CPLR 4518]). Plaintiff has also failed to provide a copy of the original credit card agreement. Finally, and particularly fatal to plaintiff's application, is that nothing in its motion papers indicates that defendant was ever notified of the assignment. Thus, numerous deficiencies in plaintiff's motion preclude the granting summary judgment.

Accordingly, plaintiff's motion for summary judgment is denied.

So Ordered.

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated: May 10, 2017

cc:

Daniels Norelli Scully & Cecere, P.C., attorneys for Plaintiff

Mary E. Sheridan, Esq., Jennifer E. Hudson, Of Counsel, attorney for Defendant

SF/mp