When a debt buyer’s authorized employee tries to obtain a judgment for an unpaid credit card debt, the debt buyer must establish proof of the debt dating back to the original creditor.
Our law firm recently defeated a motion for summary judgment based on the testimony of a debt buyer’s authorized employee.
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The pertinent portion of the Court’s decision is below:
Decision / Order on Debt Buyer’s Authorized Employee Motion for Summary Judgment
The following papers have been considered by the Court on this motion submitted May 9, 2018:
Notice of Motion w/ annexed supporting papers….. 1
Affidavit in Opposition….. 5
Plaintiff, Unifund CCR, LLC, moves for summary judgment in an assigned debt matter.
The standars for review on a motion for summary judgment are well settled. “The Proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (citations omitted). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (citations omitted)” (Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 ).
The motion suffers from a myriad of flaws, typical of such cases, any of which defeat plaintiff’s purported submission of proof in evidentiary form so as to establish its prima facie entitlement to summary judgment (see Unifund CCR Partners v Youngman, 89 AD3d 1377 [4th Dept 2011]; CACH LLC V. George, 56 Misc. 3d 591 [Dist Ct Nassau Co. 2017]; DNS Equity Group v Lavallee, 26 Misc. 3d 1228(A) [Dist Ct Nassau Co. 2011]).
Debt Buyer’s Authorized Employee Cannot Attest to Business Records of Original Creditor
Not precluding others, plaintiff has failed to provide any foundation for the assignments/bills of sale of the former account with Citibank, NA to any of the subsequent assignees other than, perhaps, that of the final assignment to Unifund CCR, LLC where Jessica Bergholz, “an authorized employee of plaintiff” is employed. Simply put, the affidavit by plaintiff’s employee cannot attest to the business records of the prior assignors. Nor is there anything to adequately establish that these assignments/bills of sale included the credit card account upon which plaintiff now sues or that the defendant was ever provided with notice of the assignments.
Additionally, with regard to plaintiff’s cause of action for recovery on an account stated there is neither proof of mailing the credit card statements to defendant (see Capital One Bank USA NA v. Joseph, 41 Misc. 3d 1214(A) [District Ct Nassau Co 2013]) nor proof of their retention by defendant without objection (see Citibank (South Dakota), N.A. v Brown-Serulovic, 97 AD3d 522 [2nd Dept 2012]; American Express Centurion Bank v Kalantzis, 2014 NY Misc LEXIS 41592014, NY Slip Op 32421(U) [Sup Ct NY Co 2014]).
In view of same, the Court finds that plaintiff has failed to meet its prima facie burden of establishing its entitlement to summary judgment, thereby necessitating denial of the motion.
Accordingly, plaintiff’s motion is denied.
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