In CACH, LLC v. Fatima, Judge Michael A. Ciaffa found ten fatal defects in CACH, LLC's case against a consumer.
Debt buyer, CACH, LLC, represented by
Daniels Norelli Scully & Cecere, P.C., sued Ms. Fatima for an alleged credit-card debt owed to Bank of America. The court denied the plaintiff's motion for summary judgment, finding that CACH had been unable to prove its prima facie case for the following reasons:
- The cardholder agreement CACH submitted to the court was not dated, was incomplete, and lacked the proper evidentiary foundation required for a business record.
- CACH's affidavit submitted in support of the cardholder agreement was not made by someone with personal knowledge of the agreement.
- The credit card statement submitted to the court lacked evidentiary foundation from a bank representative (instead, it was accompanied by an affidavit from CACH, LLC).
- Facing Ms. Fatima's denial of the amount, CACH's barebones complaint lacked sufficient information.
- CACH's affidavit in support was not based on personal knowledge. Instead, it was based on the "computerized and hard copy books and records of Bank of America," none of which were attached to the affidavit.
- CACH's "Bill of Sale and Assignment" referred to loans identified in a "loan schedule" but no such schedule was attached.
- An evidentiary foundation was not established for CACH's use of a computer spreadsheet.
- The credit-card statement, affidavit and the complaint contained conflicting account numbers.
- CACH did not allege or prove that the defendant was given notice of the assignment.
- CACH did not address its alleged violation of New York's champerty law (Judiciary Law 489), which prohibits collection agencies and corporations from purchasing claims for the sole purpose of suing on them.
The above defects are effective defenses if raised properly at the right times. Call us to determine if we should team up to use them in your case!
CACH, LLC v. Fatima, 32 Misc 3d 1231(A), 936 NYS2d 58 [Dist Ct, Nassau County, 2011].