M.N. v. Fulton, Friedman & Gullace, LLP, 12-cv-4710, (S.D.N.Y. 2012)
Rochester-based Fulton Friedman & Gullace, LLP will now face a federal lawsuit in the Southern District of New York for what I identify as a deceptive and indefensibly delayed collection lawsuit.
Fulton Friedman & Gullace represents debt buyer, Independent Receivables Corp., for an alleged Bally's Total Fitness gym debt.
The following claims are alleged in the case:
- Independence Receivables Corp. has been dissolved by proclamation – and its authority annulled – on July 27, 2011 for what appears to be its failure to comply with tax obligations. Yet it currently maintains at least 2,354 active cases in local New York courts thus violating New York Business Corporation Law.
- Fulton's first complaint misrepresented the Bally's debt as a credit card debt while it later acknowledged it meant to sue for a defaulted gym membership.
- Asserting different interest-accrual dates in two separate complaints.
- Demanding "statutory interest of 9%" without authority by contract or statute.
- Asserting different interest-accrual dates and asserting different and confusing interest types in its two complaints.
- Failing to place its, or its client's, debt collection license number on any of its pleadings.
- Demanding any interest and an annual finance charge, which were not authorized by contract or statute.
While failing to move for a default judgment within one year of our client's alleged default, Fulton Friedman instead moved the court three years later to amend its complaint to correct its false representation of the character of the debt. Fulton offered no reason whatsoever to explain its delay, or explain the cause for the false representation.
Our firm has since appeared in the collection case on behalf of the defendant and we argue that the collection lawsuit must be dismissed for the debt buyer's lack of capacity (not authorized to do business) and for its blatant violation of CPLR §3215(c) for its failure to move for a default within one year – or at least offer an excuse why it failed to do so.
The state collection action is pending. A federal action is pending against Fulton Friedman & Gullace, LLP.