Rushmore Recoveries X, LLC v Richards
Annotate this CaseDecided on March 20, 2018
City Court of Mount Vernon
Rushmore Recoveries X, LLC, Plaintiff,
against
Brenda Richards, Defendant.
0398-06
Stephanie Vetch
Stephen Einstein & Associates, P.C.
Attorneys for Plaintiff
39 Broadway, Suite 1250
New York, NY 10006
Brenda Richards
Defendant pro se
Adam Seiden, J.
A default judgment was entered against defendant on April 14, 2006 in the amount of $3,929.96 based on the defendant's failure to answer or appear. Service of the Summons and Complaint was purportedly made on defendant by serving the papers on a person of suitable age and discretion, "John Richards" at 10 West 4th Street, Floor 2, Mount Vernon, NY on February 4, 2006 at 7:50am. "John Richards" is described as a black male with black hair, 36-50 years old, 5' 9", 161-200 lbs. An additional mailing was made on February 6, 2006.
Defendant now moves by order to show cause, dated January 19, 2018, to vacate the default judgment. In support of the motion, she affirms that she has never been served and never lived at the address listed in the affidavit of service. She states that she first learned of this proceeding in June 2017. She also states that she did not have a credit card in 2006. She maintains that she could not even get credit in 2006. She further states that she has paid all of her outstanding credit card debts in full.
Plaintiff opposes the motion. Plaintiff's counsel, Stephanie Vetch, affirms that the parties [*2]entered into a payment agreement, whereby the defendant agreed to pay $3,585.51 plus interest in full satisfaction of the debt. The agreement provided that the defendant pay $100.00 per month commencing September 18, 2006 until the debt was paid in full. The duly executed agreement is attached to the papers as Exhibit B. Defendant also signed a direct payment form allowing for payments from her CFS Bank account. Counsel states that the defendant failed to make the payments as due and defaulted on the agreement. Per the payment history attached as Exhibit E, defendant made payments through March 23, 2007 totaling $1,000.00. Counsel argues that contrary to the defendant's claims, defendant was well aware of the debt.
In reply, defendant now argues that she lived at the address stated in the affidavit of service. However, she maintains that there was no adult male residing with her at the time. She states that she lived at the residence with her seven children. She states that she never received the documents mailed by the process server. Defendant also argues that the original attorneys working on this matter, Mel S. Harris & Associates, are no longer permitted to work on consumer debt cases as a result of a class action lawsuit filed against that firm. She states that Samserv, Inc., the process serving firm, agreed to provide information necessary to vacate thousands of default judgments that resulted from sewer service but is not sure if this action is one of the proceedings subject to vacatur. Defendant states that she only signed the payment agreement because she was "financially coerced". She states that her bank account was frozen by plaintiff and she could not afford to hire an attorney. She maintains that she felt forced to sign the documents so she could regain access to her bank account. Defendant further states that she never applied for an "Aspire Card" and that someone may have obtained her personal information to open an account. Defendant maintains that plaintiff has failed to demonstrate that it has standing to collect the judgment as it has failed to provide proof of assignment of the debt. Finally, defendant argues that the service of process was not properly made, and thus the court lacks personal jurisdiction over defendant.
Defendant's motion to vacate the default judgment is denied. The law provides that a party may waive her defenses, including lack of personal jurisdiction and excusable default, by entering into a stipulation of settlement and/or making payments pursuant to a judgment for a substantial period of time (Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627 (2d Dept 2014) (citing Matter of Parkside, Ltd. Liab Co., 294 AD2d, 583-584, 742 NYS2d 580 [2002]; Lomando v Duncan, 257 AD2d 649, 684 NYS2d 569 [1999]; Cadlerock Joint Ventures, L.P. v Mitiku, 45 AD3d 452, 452, 848 NYS2d 26 [2007]. In this case, defendant has made numerous inconsistent statements in her motion papers. Defendant initially stated that she never lived at the address listed in the affidavit of service. However, in the reply to the affirmation in opposition, she acknowledged that she in fact lived at the address but did not live with a "John Richards" or any other adult male at the time of service. Defendant also stated that she did not learn about this action until June 2017. However, the plaintiff disproved that statement with its submission of a payment agreement executed by the parties on August 29, 2006 and payments made by defendant toward the judgment amount. Defendant affirms in her reply papers that she was forced into signing the payment agreement because she wanted to get her bank account released. The Court finds this statement to be disingenuous especially since defendant made several payments toward the satisfaction of the judgment and took no steps to vacate the judgment after she signed the agreement almost twelve years ago.
The Court finds that defendant had knowledge of this proceeding in 2006. By entering into the payment agreement and making payments towards the judgment, defendant participated on the merits of the action and waived her purported defenses.
Accordingly, the order to show cause is denied.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Order to Show Cause dated January 19, 2018; Affidavit in support; Answer. Affirmation in Opposition, dated February 8, 2018; Exh. A-E. Reply Affidavit, dated February 22, 2018. Reply Affidavit, dated January 23, 2018.
Dated: March 20, 2018
Mount Vernon, New York
_____________________________
HON. ADAM SEIDEN
Associate City Court Judge of Mount Vernon
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