In short, District Court, Nassau County ruled that
Midland Funding, LLC may not use a Notice to Admit in lieu of laying a proper foundation for admission of documents necessary to establish its prime facie case.
A Notice to Admit is meant to apply as a time saving tool to avoid having to prove a fact not in dispute. For example, signatures on documents are appropriate items subject to the Notice-to-Admit device. Generally, a failure to respond to any statement contained therin amounts to an admission of that item.
Here, Midland Funding, LLC, as purported assignee of a defaulted Citibank account, served a Notice to Admit on an unrepresented consumer defendant seeking to establish:
- Midland's lawful ownership of the debt;
- The debt amount;
- That defendant received the annexed billing statements, and that they were true and accurate copies;
- Defendant's default;
- Defendant received notice of the account; and
- That all Midland's purported records in support represent admissible business records.
In other words, Midland apparently sought to procure Defendant's silence as a means to prove its own case that it would otherwise have to prove using proper evidentiary foundation (i.e. that records in support were reliable, admissable business records).
In Valentin, Judge Hirsh, on its own motion issued a protective order vacating
Midland's Notice to Admit. It further held that Defendant's failure to respond to it shall not be construed as an admissions of any kind.
Although the court did not honor the Notice to Admit in this action, you would be ill-advised to ignore a Notice to Admit if you receive one. Maybe a different judge in a different case would feel differently and rule against you.
If you have received any litigation document – including and especially a Notice to Admit – contact us right away. We would be happy to offer you a free consultation to discuss your case.
Midland Funding, LLC v. Valentin, 2013 WL 2097590. (Nassau County, New York, May 9, 2013)