New York City Debt Collection Defense Attorney

The Langel Firm Secures Dismissal of CACH, LLC Case due to Affidavit Defect

Represented by Daniels Norelli Scully & Cecere, P.C., debt-buyer, CACH, LLC, sued our client for an alleged Bank of America (FIA) credit-card debt.

Although the amount at issue was small, the stakes were high. Our firm will vigorously fight even a $1,000 debt if we feel that the rules of evidence[1] are not being honored.

In CACH, LLC v. Freeman,[2] we threw everything but the kitchen sink against a summary judgment motion brought by CACH, LLC. A summary judgment motion is a request by one party for a judgment in its favor based on the evidence without a trial. In our case, CACH, LLC sought this request based on its affidavits, account statements, and other documents it sought to admit as evidence. We cross-moved to dismiss CACH's case based on a multitude of reasons stemming from the legal inadequacies of its documentation.

As usual, we challenged all evidence on hearsay grounds.[3] Although we gave the judge about 10 reasons why CACH's evidence was inadmissible, the judge cited one reason to grant our relief to dismiss CACH's case: its lack of a certificate of conformity in support of the authenticity of its affidavit signed in North Carolina.

Basic litigation rules in New York (CPLR § 2309) require that an out-of-state affidavit contain a separate certification affirming that the oath requirements have been met for that state to notarize an affidavit.

CACH lacked that separate certification as required under a New York appeals case, PRA III, LLC v Gonzalez.[4]

The point of this case is that once you've been sued, the ball game changes. Although debt buyers sue you to force communication upon you with the intent to seek a judgment to seize your assets, they must first comply with the rules of evidence. Since those debt buyers buy and sue on debts in droves, the quality of their evidence greatly diminishes.

But don't ignore a summons and complaint. It's much easier for debt buyers to obtain default judgments. See our prior blog that discusses how debt collectors obtain default judgments by clerks without a judge ever evaluating the evidence.

[1] My core competencies in legal practice will always revolve around the rules of evidence. See my blog, The Law of Evidence: By Jesse Langel.

[2] 61876/11 (Civ Ct, New York County, Decided September 8, 2014).

[3] In short, hearsay evidence is matter created by third parties that lacks sufficient credibility to constitute admissible evidence.

[4] 54 AD3d 917 (2d Dept 2008).