New York City Debt Collection Defense Attorney

Cach, LLC Fails to Lay Proper Evidentiary Foundation for Purported Bank Records

Debt buyers certainly do not escape "well settled standards" when relying on documentary evidence to win summary judgment. See DNS Equity Group Inc. v. Elizabeth Lavelle, 2010 N.Y. Slip Op 50298 (Dist Ct, Nassau County).

In Cach LLC v. Fatima[1], Colorado-based, national debt buyer, Cach LLC, alleged assignee of Bank of America, found its evidence rejected for basic violations of those standards, mostly relating to hearsay evidence:

1) Cach, LLC Lacked Personal Knowledge of Bank of America's record-keeping practices

As we discussed in a prior blog entry, debt buyers' biggest hurdle relates to admitting documents created by original-creditor banks. Those third-party documents are generally considered hearsay (inadmissible, third-party statements) unless a legal exception applies.

To prevail in its account stated claim, CACH, LLC was required to produce the following evidence:

  • An affidavit by somebody with personal knowledge who could attest to account statements having been mailed – and received without objection – to the defendant.
  • Sufficient account statements to demonstrate acceptance to the terms of a "final account."

Employees and agents of the assignee debt buyers that lack personal knowledge required to attest to the above. Palisades v. Collection, LLC v. Gonzalez, 2005 N.Y. Slip Op 52015 (Civ Ct, New York). The court in Fatima felt that CACH produced neither.

2) Bill of Sale "riddled with Contradictions and Questions"

As we see in many debt buyer cases, CACH produced a "Bill of Sale and Assignment" to establish its acquisition of the particular account at issue. The Bill of Sale referenced "loans" identified in a "loan schedule" but those documents were excluded from CACH's papers. What was included was a spreadsheet that appeared to represent the electronically transferred data purchased that formed the basis (i.e. name, amount, address, date of charge-off) of the lawsuit at issue. But, the court held, any such reproduction is subject to foundational requirements to render them sufficiently trustworthy.

Other defects included: 1) the failure to establish the relationship between FIA Card Services and Bank of America; 2) the failure to prove notice of the assignment to Defendant; 3) inadequate explanation of three conflicting account numbers.

Based on the above defects, the court, unsurprisingly, denied CACH's motion for summary judgment.

[1] CACH, LLC v. Fatima, 936 N.Y.S.2d 58 (Nassau County, 2011).