Finally a judge scrutinizes and decries the blatant defects of a debt buyer's lawsuit wherein it attempted to enforce a judgment without proving that it had been validly assigned, and without proving that the attorneys of record were properly substituted. The defects exemplified in this case are so tortuous and confusing, you'll need a quiet place to read this blog entry.
It is easiest to simply list the observed defects of this case:
- The plaintiff-debt buyer, Centurion Capital Corporation, is a dissolved, Maryland corporation that is not registered to do business in New York State and therefore lacks the capacity to maintain the action.
- Centurion, an unauthorized foreign corporation, which systematically filed lawsuits as part of its business model does not enjoy the general rule that the defense of lack of capacity is waived if not raised (See CPLR § 3211(e)).
- Approximately 93.3 percent of defendants in consumer debt cases never appear in court, and about 80 percent of consumer debt claims filed in Civil Court result in default judgments. Statistics such as this require the court to look beyond pro forma movement of these cases through the system.
- Centurion Capital Corp. was never licensed as a debt collector under NYC Admin. Code § 20-488, neither was its attorney of record at the time, Wolpoff and Abramson. CPLR § 3015(e) requires that such a license number be placed in the complaint of a consumer credit action.
- The failure to properly register with the Secretary of State coupled with a failure to register as a licensed debt collector creates a fraud on both the public and the court.
- Incoming attorneys, Fulton, Friedman & Gullace, LLP, failed to place their address on the consent-to-change attorney document. A previously required change of counsel from Wolpoff & Abramson to Mann Bracken was not done. (CPLR § 321(b)(2) requires either a "consent to change" document or motion to effect such a change).
- Limited liability partnerships must designate the Secretary of State as an agent for service of process and provide the Secretary of State with the name and address of a registered agent to which it can forward process. Wolpoff & Abramson, although still actively doing business in New York, has not complied with this rule.
- Attorneys for incoming law firm, Fulton, Friedman & Gullace, improperly signed a power of attorney on behalf of outgoing law firm Mann Bracken.
- The purported "Notice of Assignment" failed to properly identify the assignor (original bank and judgment creditor). No copy of the actual assignment was produced. No document containing the debtor's account was included.
- Out-of-state affidavits with notaries failed to contain a certificate of conformity as required under CPLR § 2309c.
- Centurion's "Affidavit of Facts" failed to demonstrate personal knowledge of the facts.
- The close physical proximity of all law firms involved raises suspicions that some attorneys have improper stakes in the litigation. In other words, New York State forbids attorneys and corporations from purchasing debts solely for the purpose of bringing litigation for the debt. This practice is known as champerty. Courts want to see collectors and attorneys actually attempt collection first before commencing litigation.
- Centurion's practice of failing to be duly authorized or licensed as a debt collector is a "deceptive" business practice under New York General Business Law § 349.
The fact that Wolpoff & Abramson and Mann Bracken are listed as "active" entities with the Secretary of State, but lack registered agents making them not in compliance with the statutes authorizing their presence in New York is a "deceptive" business practice.
Centurion Capital Corp. v. Anna Guarino, 11117/05, NYLJ 1202553647897, at *1 (Civ., RI, Decided May 3, 2012).