Have you been sued by CACH, LLC? Or Midland Funding? Or Palisades Collections? Or LVNV Funding? In the case CACH, LLC v. Fatima, Nassau County District Court Judge Michael A. Ciaffa found ten shortcomings in CACH, LLC's (CACH's) case against the consumer. If you have been sued by a debt buyer in New York, the list below, which summarizes the holes Judge Ciaffa found in CACH's case, is a good place to start to check the strength of the debt buyer's case against you.
In the case, debt buyer CACH was attempting to collect from a consumer, Ms. Fatima, on a defaulted credit card account it had allegedly bought from 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:
1) The cardholder agreement CACH submitted to the court was not dated, was incomplete, and lacked the proper evidentiary foundation required for a business record.
2) The affidavit submitted in support of the cardholder agreement was not made by someone with personal knowledge of the agreement or its issuance to the consumer. Further, the affidavit from the bank representative stated that the original agreement had been destroyed or was no longer accessible.
3) The credit card statement submitted to the court lacked a proper business records foundation from a bank representative (instead, it was accompanied by an affidavit from the plaintiff debt buyer).
4) The consumer had denied in her answer that the amount sought was accurate, so without a showing as to how the amount was calculated (rather than a boilerplate statement in the affidavit from the bank representative that the amount was "due and owing"), the correctness of the amount sought could not be established.
5) The affidavit of the plaintiff debt buyer was not made based on personal knowledge but rather was based on the "computerized and hard copy books and records of Bank of America," none of which were attached to the affidavit.
6) The plaintiff alleged that defendant's account was sold by Bank of America to CACH, but the "Bill of Sale and Assignment" submitted to the court referred only to the sale of certain unspecified loans identified in a "loan schedule." A computer spreadsheet was attached, but no foundation was laid for its admission.
7) The assignor of the loans was identified in the papers as FIA Card Services, N.A. but defendant's account was issued by Bank of America, not FIA. Although FIA is allegedly a wholly owned subsidiary of Bank of America (according to the affidavit submitted by the bank), the plaintiff CACH never explained how the bank's subsidiary, FIA, acquired the right, title and interest to convey defendant's alleged debt to CACH.
8) Different account numbers appeared on the statement, bank's affidavit and the complaint.
9) The plaintiff did not allege or prove that the defendant was given notice of the assignment.
10) The plainitff did not address whether, if it did not notify the defendant of the assignment, it had violated New York's champerty law (Judiciary Law 489), which prohibits collection agencies and corporations from purchasing a claim for the sole purpose of suing on it and obtaining a windfall.
 32 Misc 3d 1231(A), 936 NYS2d 58 [Dist Ct, Nassau County, 2011].