Student Loan Solutions, LLC v Colon

[*1] Student Loan Solutions, LLC v Colon 2020 NY Slip Op 51465(U) Decided on December 10, 2020 Supreme Court, Kings County Montelione, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2020
Supreme Court, Kings County

Student Loan Solutions, LLC as assignee of Bank of America, N.A., Plaintiff,

against

Tameeka Colon and Lula McMillan, Defendants.



512313/2019



Plaintiff by Schachter Portnoy Schneck, L.L.C., Dolores Iannarone-Rainieri, Esq., 3705 Quakerbridge Road, Suite 116, Hamilton, New Jersey 08619, Phone: 609/514-8668;

Defendant by Brooklyn Legal Services, Johnson M. Tyler, Esq., 105 Court Street, 3rd Floor, Brooklyn, New York 11201; (718) 237-5500 (5548 direct)
Richard J. Montelione, J.

The following papers numbered 1 to 1 were read on this motion pursuant to CPLR 2219(a):

Papers Numbered

Plaintiff's Notice of Motion for Summary Judgment dated January 29, 2020; Affirmation of Dolores Iannarone-Rainieri, Esq., affirmed on January 29, 2020; Exhibits A, B, C 1

Defendant's Cross-Motion for Summary Judgment and to Dismiss dated March 13, 2020, Attorney Affirmation of Johnson M. Tyler, Esq., affirmed on March 13, 2020, Exhibits A-H 2

Attorney Affirmation in Reply of Dolores Iannarone-Rainieri, Esq. affirmed on October 21, 2020; Affidavit of Christopher P. Ruh sworn to on February 13, 2020, Exhibits 1-4 3

This action was commenced by filing a complaint on June 4, 2019 and issue was joined on July 3, 2019 by the filing of the answer. Plaintiff seeks a judgment asserting that defendants obtained a student loan from Bank of America which was then assigned to plaintiff with a balance owed of $37,168.00 plus interest. Although plaintiff asserts that the debt was accelerated by letter dated February 18, 2019 from Williams & Fudge, Inc. (Exhibit 4), defendant provided the court with a letter dated September 11, 2013, also from Williams & Fudge, Inc., stating "We have been retained by the above creditor to collect the total amount from you in connection with a delinquent educational debt." (Exhibit D). Notwithstanding plaintiff's arguments that Williams & Fudge, Inc. lacked authority to accelerate the debt, plaintiff cannot use one letter from this entity to prove the acceleration of the loan and deny that [*2]it was authorized to do so in another letter when such letters on their face indicate agency and no affidavit was provided which showed otherwise. ("At the very least, at the time of the notice of default, plaintiff was the lender's servicing agent, with authority to accept payment, collect the debt, and send notices of default," CitiMortgage, Inc. v Parris, 136 AD3d 592, 592 [1st Dept 2016]).

Unlike language such as "may" or a contingency "if" payment is not made the full amount will be sought, the language in the letter of September 11, 2013 is explicit that the creditor sought "to collect the total amount" which is "clear and unambiguous" (Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867 [2d Dept 2016]) and is therefore an acceleration letter which triggers the statute of limitations. See Milone v US Bank N.A., 164 AD3d 145 (AD2nd Dept. 2018).

The original loan agreement contained a choice of law of California but New York enforces such provision only to the extent of applying the substantive and not the procedural law of the state. (See 2138747 Ontario, Inc. v Samsung C & T Corp., 144 AD3d 122 [1st Dept 2016]). However, the statute of limitations of New York is not exclusive. " 'When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued (Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528, 715 NE2d 482, 693 NYS2d 479 [1999]; see Proforma Partners v Skadden Arps Slate Meagher & Flom, 280 AD2d 303, 720 NYS2d 139 [2001]' " (see Educ. Resources Inst., Inc. v Piazza, 17 AD3d 513, 514 [2d Dept 2005]).

Here, it appears the cause of action accrued in California because the default in payments and the direction to accelerate the loan occurred in California. The statute of limitations for California is four years. (Cal. Civ. Proc. Code, § 337). Even if the cause of action accrued in South Carolina where the plaintiff is currently located, the statute of limitations in that state is three years. (S.C. Code Ann. § 15-3-530). Applying either limitations period, the statute of limitations is a bar to the plaintiff's action. See Educ. Resources Inst., Inc. v Piazza, supra.

Based on the foregoing, the defendant's cross-motion for summary judgment and to dismiss is granted, plaintiff's motion for summary judgment is denied as moot and all other requests for relief are denied.

This constitutes the decision and order of the Court.

Dated: December 10, 2020

Hon. Richard J. Montelione