-  This bill is not active in this session.
 
     
  •  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A02382 Summary:

BILL NOA02382
 
SAME ASSAME AS S00153
 
SPONSORWeinstein (MS)
 
COSPNSRGalef, Zebrowski, O'Donnell, Fahy, Peoples-Stokes, Rosenthal L, Dinowitz, Seawright, Glick, Weprin, Taylor, Reyes
 
MLTSPNSRCahill, Cymbrowitz, Gottfried, Perry
 
Amd CPLR, generally; amd 212, Judy L
 
Enacts the "consumer credit fairness act"; establishes a 3 year statute of limitations for commencement of a cause of action arising out of a consumer credit transaction where the defendant is a purchaser, borrower or debtor; establishes a notice of lawsuit which must be mailed to the defendant in such a cause of action; establishes certain requirements for the complaint in such an action; provides for arbitration of such actions.
Go to top    

A02382 Actions:

BILL NOA02382
 
01/19/2021referred to judiciary
05/04/2021reported referred to codes
05/12/2021reported
05/13/2021advanced to third reading cal.350
06/02/2021substituted by s153
 S00153 AMEND= THOMAS
 01/06/2021REFERRED TO JUDICIARY
 02/23/20211ST REPORT CAL.405
 02/24/20212ND REPORT CAL.
 03/01/2021ADVANCED TO THIRD READING
 05/25/2021PASSED SENATE
 05/25/2021DELIVERED TO ASSEMBLY
 05/25/2021referred to codes
 06/02/2021substituted for a2382
 06/02/2021ordered to third reading cal.350
 06/02/2021passed assembly
 06/02/2021returned to senate
 10/27/2021DELIVERED TO GOVERNOR
 11/08/2021SIGNED CHAP.593
Go to top

A02382 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2382
 
SPONSOR: Weinstein (MS)
  TITLE OF BILL: An act to amend the civil practice law and rules and the judiciary law, in relation to consumer credit transactions   SUMMARY OF PROVISIONS: OF BILL: The bill would amend pleading requirements particular to consumer credit actions by requiring that the complaint provide the name of the original creditor, the last four digits of the account number printed on the most recent monthly statement recording a purchase transaction, last payment, or balance transfer, the date and amount of the last payment, an itemi- zation of the amount sought, the account balance printed on the most recent monthly statement recording a purchase transaction, last payment, or balance transfer, and whether the plaintiff is the original creditor, and if not, information about the sale and assignment of the debt. The bill also requires that a copy of the contract or other written instru- ment on which the action is based be attached to the complaint. The bill would reduce the statute of limitations on consumer credit actions from six years to three years. The bill would permit defendants in consumer credit actions to raise improper service as a defense in their answer and preserve that defense for trial without having to file a separate motion to dismiss within 60 days as under current law. It would require that an additional notice of a pending consumer credit action be mailed to the defendant by the clerk of the court, with the notice and mailing envelope provided by the plaintiff. This notice would provide important information to the consumer credit defendant, includ- ing the website address for consumer credit resources maintained by the New York State Office of Court Administration. The chief administrative judge would be required to make available Spanish translations of said additional notices. Similar in concept to the notice provided to the consumer upon commence- ment of the action, the bill would require an additional notice advising defendants in consumer credit actions against whom a summary judgment motion has been made of the significance and consequence of such a motion, and how to respond. It would also include the website address for consumer credit resources maintained by the New York State Office of Court Administration to assist consumer credit defendants in responding to such motions. To prevent the entry of default judgments on claims that lack merit, the bill would require applications for default judgments in consumer credit actions to conform with specific requirements. These include (1) an affidavit by the original creditor of the facts constituting the debt, the default in payment, the sale or assignment of the debt, and the amount due at the time of sale or assignment; (2) for each subsequent assignment or sale of the debt to another entity, an affidavit of sale of the debt by the debt seller, completed by the seller or assignor; and (3) an affidavit of a witness of the plaintiff, which includes a chain of title of the debt, completed by the plaintiff or plaintiffs witness. The bill will also require that applications for default judgments in consumer credit actions include a statement that after reasonable inquiry, the plaintiff or its attorney has reason to believe that the statute of limitations has not expired. Finally, the chief administra- tive judge would be required to issue form affidavits for default motions based upon consumer credit transactions, which would standardize and make uniform the motion disposition process for the courts. The bill would also provide similarly exacting requirements for consumer creditors who seek to enter judgment based upon an arbitration award. Finally, the bill clarifies § CPLR 5019(c) applies only to judgment creditors.   JUSTIFICATION: There have been serious concerns reported about the growing problem of abusive debt collection practices, including filing suit on debts that are too old to be sued on, are a result of identity theft or are debts that have been paid or otherwise discharged. Original creditors, such as credit card issuers, routinely sell large portfolios of consumer debt accounts to debt buyers, who regularly re-sell the debts. Minimal infor- mation or documentation is transferred to debt purchasers. The process makes it difficult for a consumer to identify the debt, the current owner, or amount claimed and results in collection efforts that continue for years, including lawsuits filed after the statute of limitations has expired. There have been instances in which a consumer paid a debt, but was later contacted by another debt buyer attempting to collect it. Other reported concerns include lack of notice to the defendant of the law suit resulting in a default judgment against the defendant without a requirement to produce proof of the debt sued on. These default judg- ments are collected through wage garnishment and bank account restraints, which is often the first time a consumer learns that they were sued. Stopping garnishment and unfreezing bank accounts requires that the consumer take action in court, but rarely do consumers have attorneys to help. It is especially burdensome given the limitations on daily life and the health challenges related to the COVID-19 pandemic. The devastating toll that abusive debt collection lawsuits take on consumers is a longstanding and persistent problem identified by numer- ous governmental and public policy institutions up through this day. In its 2010 report, Repairing A Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration. the Federal Trade Commission recommended state-level reforms similar to those contained in this bill. In 2016, Human Rights Watch made similar recommendations in a study called Rubber Stamp Justice, which incorporated data supplied by the New York court system. Most recently, in May 2020 The PEW Charitable Trusts issued How Debt Collectors Are Transforming the Business of State Courts, which noted, among many other things: "Debt collection lawsuits that end in default judgment can have lasting consequences for consum- ers' economic stability." (Page 17.) PEW also recommended a review of state policies to ensure that both sides can effectively present their cases. This bill responds to these calls for better delivery of justice to consumer defendants. Abusive debt collection lawsuits exploit current gaps in our State's civil procedure laws and rules. The proposed legislation helps to fill those gaps. In doing so, this legislation will protect all consumers, and will particularly help ameliorate some of the forms of economic abuse, including identity theft, suffered by domestic violence victims at the hands of their abusers. At a hearing on economic abuse as a form of domestic abuse, held on December 5, 2012, by the New York State Assembly Committees on Judiciary and Codes, civil legal service provid- ers, domestic violence prevention advocates and the Office of Court Administration highlighted the insidious and pervasive nature of various forms of economic abuse perpetrated by abusers in the family violence context to exercise power and control over their victims and their finances. The types of abuse cited included incurring debt in the survivor's name through false statements or coercion, perpetrating iden- tity theft or otherwise incurring debt without the survivor's knowledge. Witnesses at the hearing cited this legislation as important and helpful to meliorating economic abuse suffered by domestic abuse survivors. This legislation requires statewide institution of additional notice requirements that are presently in place through court rules and which have indeed been helpful to consumer credit defendants, who rarely have attorneys to represent them, even when they learn that they have been sued. The notice provides basic understanding of the consequences of legal actions taken against them and the importance of responding to the lawsuit. It has also reduced the number of default judgments. There is a significant and documented problem with faulty service that results in default judgments with serious life-altering ramifications. Without notice, defendants do not appear in court, and debt buyers easily obtain default judgments. These judgments are enforced by freezing people's bank accounts and garnishing their wages, hampering their ability to then pay for basic necessities such as food, utilities, medication and housing. These judgments appear are public records, making it close to impossible for a consumer to secure housing or employment, or to take out a loan. The provisions of this bill would protect all consumers and domestic abuse survivors in particular, by ensuring that New Yorkers receive actual notice of debt collection actions. Current law allows debt collectors to provide minimal and vague informa- tion in the complaint that initiates the case, making it very difficult for consumers to identify the debt or the company collecting it. This bill requires court papers to include more information about the debt sued upon. This would ensure that all New Yorkers will be better able to identify the debt on which they are being sued. There are many debts that result from identity theft or mistaken identity and, in other situ- ations the defendant may not recognize the debt as theirs from the mini- mal information provided on the initial legal papers and may therefore not respond. This legislation will be particularly important for domes- tic violence survivors as it will help them identify the debt and assert defenses in cases involving debts they did not voluntarily incur but that were incurred by their abusers in the survivor's name. This legislation will reduce the statute of limitations for consumer credit actions from six to three years. Reducing the statute of limita- tions requires creditors to file their claims while memories are fresh and records are still available. States with three year statutes of limitation include: Arizona, Arkansas, Delaware, Kansas, Louisiana, Maryland, Mississippi, Montana, and the District of Columbia. Pennsylva- nia has a two-year statute of limitation. Debt collection actions are rife with poor service of process as confirmed in numerous studies and by New York governmental institutions. Indeed, questionable service of process is the reason for the exceeding- ly high number of default judgments in consumer credit actions. Because consumer defendants rarely have attorneys, improper service is a defense they often unknowingly waive when they finally discover they have been sued, even though service of process is a requirement of due process rights afforded under the United States Constitution. Current law places time limits on a defendant's right to assert improper service as a defense or to seek dismissal of the case on this basis. To protect consumers from unknowingly waiving this legitimate defense, the bill would allow consumer defendants to assert improper service as a defense and seek dismissal of the lawsuit beyond the time limits in current law. Debt collection actions are also rife with faulty documentation and debts that are too old to be sued on. To ensure that default judgment applications in debt collection lawsuits are evaluated on the merits, and that default judgments are not entered on time-barred debts, this bill requires plaintiffs seeking default judgments to provide basic proof of the debt, its entitlement to judgment, and the timeliness of the lawsuit. This includes an affidavit from the original creditor with proof of the debt and the consumer's default in payment. If the debt was sold, affidavits proving the sale must be submitted to show that the plaintiff is the current owner entitled to obtain the judgment. To protect consumers from the entry of judgment on time-barred debts, this bill would require that applications for default judgments in consumer credit actions include a statement that the creditor or its attorney has reason to believe that the statute of limitations has not expired. This legislation will benefit all consumers and for domestic violence survivors, it will go a long way toward helping break the cycle of violence and domestic abuse that enables perpetrators of domestic abuse to exercise control over their victims and their finances in a manner that prevents the victim from leaving a dangerous relationship or which forces them to return to it.   LEGISLATIVE HISTORY: 2020: A.6909-E/S.4827-E - A.Cal/S.Judi 2019: A.6909-AIS.4827-B - A.Cal/S.Rules 2018: A.1752-A/S.8959-A - A.Cal/S.Rules 2017: A.1752 - A.Cal. 2016: A.4438 - A. Judi 2015: A.4438 - A. Cal. 2013-14: Similar to A.9053/S.2454 - Passed Assembly/S. Judiciary 2011-12: Similar to A.633/S.677-A - Assembly Calendar/S. Judiciary 2010: A.7558-A/S.4398-A - Passed Assembly/S. Finance 2009: A.7558-A/S.439S-A - Passed Assembly/S. Codes   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Immediately; provided, however, that sections two, three, five, six, seven, eight, nine, ten, eleven and twelve shall take effect on the one hundred eightieth day after it shall have become a law and shall apply to actions and proceedings commenced on or after such date; and provided, further, that section four of this act shall take effect on the one hundred fiftieth day after this act shall have become a law.
Go to top

A02382 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2382
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 19, 2021
                                       ___________
 
        Introduced  by  M.  of  A. WEINSTEIN, GALEF, ZEBROWSKI, O'DONNELL, FAHY,
          PEOPLES-STOKES,  L. ROSENTHAL,  DINOWITZ,  SEAWRIGHT,  GLICK,  WEPRIN,
          TAYLOR  --  Multi-Sponsored  by  -- M. of A. CAHILL, CYMBROWITZ, GOTT-
          FRIED, McDONOUGH -- read once and referred to the Committee on Judici-
          ary

        AN ACT to amend the civil practice law and rules and the judiciary  law,
          in relation to consumer credit transactions
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "consumer credit fairness act".
     3    §  2.  Section  105  of the civil practice law and rules is amended by
     4  adding two new subdivisions (h-1) and (q-1) to read as follows:
     5    (h-1) Finance charge. The term "finance  charge"  means  the  cost  of
     6  consumer credit as a dollar amount, includes any charge payable directly
     7  or  indirectly by the consumer and imposed directly or indirectly by the
     8  creditor as an incident to or a condition of the  extension  of  credit,
     9  and  does  not include any charge of a type payable in a comparable cash
    10  transaction.
    11    (q-1) Original creditor. The term "original creditor" means the entity
    12  that owned a consumer credit account at the date of default giving  rise
    13  to a cause of action.
    14    § 3. Subdivision 2 of section 213 of the civil practice law and rules,
    15  as  amended  by  chapter  709 of the laws of 1988, is amended to read as
    16  follows:
    17    2. an action upon a contractual obligation or  liability,  express  or
    18  implied,  except  as  provided  in section two hundred thirteen-a or two
    19  hundred fourteen-i of this article or article 2 of the  uniform  commer-
    20  cial code or article 36-B of the general business law;
    21    §  4.  The  civil  practice  law  and rules is amended by adding a new
    22  section 214-i to read as follows:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00040-01-1

        A. 2382                             2
 
     1    § 214-i. Certain actions arising out of consumer  credit  transactions
     2  to  be commenced within three years. An action arising out of a consumer
     3  credit transaction where a purchaser, borrower or debtor is a  defendant
     4  must  be commenced within three years, except as provided in section two
     5  hundred  thirteen-a  of this article or article 2 of the uniform commer-
     6  cial code or article 36-B of the general business  law.  Notwithstanding
     7  any  other  provision  of  law,  when  the applicable limitations period
     8  expires, any subsequent payment toward, written or oral  affirmation  of
     9  or  other activity on the debt does not revive or extend the limitations
    10  period.
    11    § 5. The civil practice law and rules  is  amended  by  adding  a  new
    12  section 306-d to read as follows:
    13    §  306-d.  Additional  mailing of notice in an action arising out of a
    14  consumer credit transaction. (a) At the time of filing with the clerk of
    15  the proof of service of the summons and complaint in an  action  arising
    16  out  of a consumer credit transaction, the plaintiff shall submit to the
    17  clerk a stamped, unsealed envelope addressed to the  defendant  together
    18  with  a  written  notice  in  clear type of no less than twelve-point in
    19  size,  in  both  English  and  Spanish,  and  containing  the  following
    20  language:
    21                        ADDITIONAL NOTICE OF LAWSUIT
 
    22  (NAME OF COURT)
    23  (COUNTY)
    24  (STREET ADDRESS, ROOM NUMBER)
    25  (CITY, STATE, ZIP CODE)
 
    26  (NAME OF DEFENDANT)
    27  (ADDRESS OF DEFENDANT)
 
    28  Plaintiff:
    29  Defendant:
    30  Name of original creditor, unless same:
    31  Index number:
 
    32  Attention:  a  lawsuit  has been filed against you claiming that you owe
    33  money for an unpaid consumer debt.
    34  You may wish to contact an attorney.
    35    You should respond to the lawsuit as soon as  possible  by  filing  an
    36  "answer" which may be done at the court clerk's office listed above.
    37    If  you  do  not  respond  to the lawsuit, the court may enter a money
    38  judgment against you. Once entered, a judgment is good and can  be  used
    39  against  you  for  twenty  years,  and your personal property and money,
    40  including a portion of your paycheck and/or bank account, may  be  taken
    41  from  you.  Also, a judgment may affect your credit score and can affect
    42  your ability to rent a home, find a job, or take out a loan.
    43  You CANNOT be arrested or sent to jail for owing a debt.
    44  Additional information can be found at the New York state  court  system
    45  website.
    46  Sources of information and assistance:
    47  The  court  encourages  you  to  inform yourself about your options as a
    48  defendant in this lawsuit. In addition  to  seeking  assistance  from  a
    49  private  attorney  or  legal aid office, there are free legal assistance
    50  computer programs that you can use online to help you represent yourself
    51  in this lawsuit.

        A. 2382                             3
 
     1  For further information, or to locate a legal aid program near you,  you
     2  may  visit  the  LawHelpNY  website  or  the New York state court system
     3  website, which has information for representing yourself  and  links  to
     4  other resources at: ___________________.
     5    (b)  The  face  of the envelope shall be addressed to the defendant at
     6  the address at which process was served, and shall contain  the  defend-
     7  ant's  name, address (including apartment number) and zip code. The face
     8  of the envelope also shall state the appropriate clerk's office  as  its
     9  return address.
    10    (c)  The  clerk  promptly  shall  mail  to  the defendant the envelope
    11  containing the additional notice set forth in subdivision  (a)  of  this
    12  section.  No default judgment based on the defendant's failure to answer
    13  shall be entered unless there has been compliance with this section, and
    14  at least twenty days have elapsed from the date of mailing by the clerk.
    15  No default judgment based on the defendant's failure to answer shall  be
    16  entered if the additional notice is returned to the court as undelivera-
    17  ble.  Receipt  of the additional notice by the defendant does not confer
    18  jurisdiction on the court in the absence of proper service of process.
    19    (d) The chief administrative judge shall issue a  Spanish  translation
    20  of  the notice in subdivision (a) of this section and shall maintain and
    21  publish the URL address for the web page containing  consumer  resources
    22  for unrepresented litigants.
    23    §  6.  Subdivision  (a)  of section 3012 of the civil practice law and
    24  rules is amended to read as follows:
    25    (a) Service of  pleadings.  The  complaint  may  be  served  with  the
    26  summons, except that in an action arising out of a consumer credit tran-
    27  saction,  the  complaint  shall be served with the summons. A subsequent
    28  pleading asserting new or additional claims for relief shall  be  served
    29  upon  a party who has not appeared in the manner provided for service of
    30  a summons. In any other case, a pleading shall be served in  the  manner
    31  provided  for service of papers generally. Service of an answer or reply
    32  shall be made within twenty days after service of the pleading to  which
    33  it responds.
    34    §  7.  Rule  3016  of  the  civil practice law and rules is amended by
    35  adding a new subdivision (j) to read as follows:
    36    (j) Consumer credit transactions.  In  an  action  arising  out  of  a
    37  consumer  credit  transaction where a purchaser, borrower or debtor is a
    38  defendant, the contract or other written instrument on which the  action
    39  is  based  shall be attached to the complaint, however, for the purposes
    40  of this section, if the account was  a  revolving  credit  account,  the
    41  charge-off  statement  may  be  attached to the complaint instead of the
    42  contract or other written  instrument,  and  the  following  information
    43  shall be set forth in the complaint:
    44    (1) The name of the original creditor;
    45    (2)  The  last  four  digits of the account number printed on the most
    46  recent monthly statement recording a purchase transaction, last  payment
    47  or balance transfer;
    48    (3)  The  date  and  amount  of the last payment or, if no payment was
    49  made, a statement that the purchaser, borrower or debtor made no payment
    50  on the account;
    51    (4) If the complaint contains a cause of action based  on  an  account
    52  stated,  the  date  on or about which the final statement of account was
    53  provided to the defendant;
    54    (5) (A) Except as provided in subparagraph (B) of this  paragraph,  an
    55  itemization  of the amount sought, by (i) principal; (ii) finance charge
    56  or charges; (iii) fees imposed by the original creditor; (iv) collection

        A. 2382                             4
 
     1  costs; (v) attorney's fees; (vi) interest; and (vii) any other fees  and
     2  charges.
     3    (B)  If  the account was a revolving credit account, an itemization of
     4  the amount sought, by:   (i) the total amount of  the  debt  due  as  of
     5  charge-off;  (ii) the total amount of interest accrued since charge-off;
     6  (iii) the total amount of non-interest charges  or  fees  accrued  since
     7  charge-off; and (iv) the total amount of payments and/or credits made on
     8  the debt since charge-off;
     9    (6)  The  account balance printed on the most recent monthly statement
    10  recording a purchase transaction, last payment or balance transfer;
    11    (7) (A) Whether the plaintiff is the original creditor.
    12    (B) If the plaintiff is not the original creditor, the complaint shall
    13  also state (i) the date on which the debt was sold or  assigned  to  the
    14  plaintiff;  (ii) the name of each previous owner of the account from the
    15  original creditor to the plaintiff and the date on which  the  debt  was
    16  assigned to that owner by the original creditor or subsequent owner; and
    17  (iii)  the  amount due at the time of the sale or assignment of the debt
    18  by the original creditor; and
    19    (8) Any matters required to be stated with particularity  pursuant  to
    20  rule 3015 of this article.
    21    § 8. Subdivision (e) of rule 3211 of the civil practice law and rules,
    22  as  amended  by  chapter  616 of the laws of 2005, is amended to read as
    23  follows:
    24    (e) Number, time and waiver of objections; motion to  plead  over.  At
    25  any  time before service of the responsive pleading is required, a party
    26  may move on one or more of the grounds set forth in subdivision  (a)  of
    27  this  rule,  and  no  more  than one such motion shall be permitted. Any
    28  objection or defense based upon a ground set forth  in  paragraphs  one,
    29  three,  four,  five  and  six  of subdivision (a) of this rule is waived
    30  unless raised either by such motion or in  the  responsive  pleading.  A
    31  motion  based  upon a ground specified in paragraph two, seven or ten of
    32  subdivision (a) of this rule may be made at any subsequent time or in  a
    33  later  pleading,  if one is permitted; an objection that the summons and
    34  complaint, summons with notice, or notice of petition and  petition  was
    35  not  properly  served is waived if, having raised such an objection in a
    36  pleading, the objecting party does not move for judgment on that  ground
    37  within  sixty  days after serving the pleading, unless the court extends
    38  the time upon the ground of undue hardship. The foregoing sentence shall
    39  not apply in any proceeding to collect a debt arising out of a  consumer
    40  credit  transaction where a consumer is a defendant or under subdivision
    41  one or two of section seven hundred eleven of the real property  actions
    42  and  proceedings  law.  The  papers  in  opposition to a motion based on
    43  improper service shall contain a copy of the proof of  service,  whether
    44  or  not  previously filed. An objection based upon a ground specified in
    45  paragraph eight or nine of subdivision (a) of this rule is waived  if  a
    46  party  moves  on any of the grounds set forth in subdivision (a) of this
    47  rule without raising such objection or  if,  having  made  no  objection
    48  under  subdivision  (a)  of  this  rule,  he  or she does not raise such
    49  objection in the responsive pleading which, in any action to  collect  a
    50  debt  arising out of a consumer credit transaction where a consumer is a
    51  defendant, includes any amended responsive pleading.
    52    § 9. Rule 3212 of the civil practice  law  and  rules  is  amended  by
    53  adding a new subdivision (j) to read as follows:
    54    (j)  Additional notice in any action to collect a debt arising  out of
    55  a consumer credit transaction where a consumer is a defendant.

        A. 2382                             5
 
     1    1. At the time of service of a notice of motion any  part  of    which
     2  requests  summary  judgment in whole or in part, where the  moving party
     3  is a plaintiff and the respondent is a consumer defendant in  an  action
     4  to  collect  a  debt  arising out of a  consumer credit transaction, and
     5  where the consumer defendant against  whom summary judgment is sought is
     6  not  represented by an attorney, the plaintiff shall submit to the clerk
     7  a stamped, unsealed envelope addressed to the  defendant  together  with
     8  the  following additional notice in English and Spanish to be printed in
     9  clear type no less than twelve-point in size:
    10                              IMPORTANT NOTICE
    11  The Plaintiff has asked the Court  to  enter  judgment  against  you  by
    12  making a Motion for Summary Judgment.  Keep this Notice and the envelope
    13  it  came  in.  The  Motion for Summary Judgment was separately served on
    14  you.  To avoid entry of judgment:
    15  (1) You must appear in court as directed below:
    16  WHERE:  Name of Court, Street Address, Room Number
    17  WHEN:  Date and time
    18  (2) You should oppose the motion IN WRITING.
    19  HOW TO OPPOSE THE MOTION:
    20    (1) State the legal reasons why the court should  not  enter  judgment
    21  against you, including your defenses.
    22    (2) State the facts that support your defenses.
    23    (3) Attach affidavits and/or exhibits to support the facts you assert.
    24    (a)  Affidavits  are sworn statements of witnesses (including you) who
    25  state facts they know to be true.  The affidavit should state the  facts
    26  and  how the witness knows them.  Also, the affidavit should explain any
    27  exhibits.  An affidavit of service is an affidavit that states  how  and
    28  when  papers  were  served.    An affidavit must be signed in front of a
    29  notary. Free forms are available on the  New  York  State  Court  system
    30  website at: ____________________.
    31    (b) Exhibits are copies of documents. Exhibits are usually attached to
    32  affidavits.
    33    (4)  Have someone (not you or another defendant in the lawsuit) mail a
    34  copy of your opposition to the plaintiff's attorney  before  your  court
    35  date and have them prepare an affidavit of service by mail.
    36    (5)  Bring  a  copy of your opposition and the affidavit of service to
    37  your court date.
    38    (6) Attend your court date.
    39  IF YOU NEED MORE TIME:
    40  If you need more time to  prepare  your  written  response,  you  should
    41  appear at your court date and ask the judge for more time.  You can also
    42  ask the judge to refer you for legal help.
    43  IF YOU NEED LEGAL HELP:
    44  You  may  seek legal help from a private attorney or a legal aid office.
    45  Some courts have free  legal  assistance  programs  for  people  without
    46  lawyers.    You  can  find  resources on the New York State court system
    47  website at: ____________________.
    48    2. The clerk  promptly  shall  mail  to  the  defendant  the  envelope
    49  containing  the  additional  notice  set  forth in paragraph one of this
    50  subdivision and note the date of mailing in  the  case  record.  Summary
    51  judgment shall not be entered based on defendant's failure to oppose the
    52  motion  unless  there has been compliance with this section and at least
    53  fourteen days have elapsed from the date of  mailing  by  the  clerk  or
    54  nineteen  days  if  the  plaintiff's notice of motion demands additional
    55  time under subdivision (b) of rule 2214 of this chapter.

        A. 2382                             6
 
     1    3. The chief administrative judge shall issue a Spanish translation of
     2  the notice in paragraph one of this subdivision and shall  maintain  and
     3  publish  the  URL  address  for  the web page containing consumer credit
     4  resources for unrepresented litigants.
     5    §  10. Section 3213 of the civil practice law and rules, as amended by
     6  chapter 210 of the laws of 1969, is amended to read as follows:
     7    § 3213. Motion for summary judgment in  lieu  of  complaint.  When  an
     8  action is based upon an instrument for the payment of money only or upon
     9  any  judgment,  the  plaintiff  may  serve  with the summons a notice of
    10  motion for summary judgment and the  supporting  papers  in  lieu  of  a
    11  complaint.  The summons served with such motion papers shall require the
    12  defendant to submit answering papers  on  the  motion  within  the  time
    13  provided  in the notice of motion. The minimum time such motion shall be
    14  noticed to be heard shall be as provided by subdivision (a) of rule  320
    15  for  making  an appearance, depending upon the method of service. If the
    16  plaintiff sets the hearing date of the motion  later  than  the  minimum
    17  time  therefor,  he  may  require  the  defendant to serve a copy of his
    18  answering papers upon him within  such  extended  period  of  time,  not
    19  exceeding  ten days, prior to such hearing date. No default judgment may
    20  be entered pursuant to subdivision (a) of  section  3215  prior  to  the
    21  hearing  date  of  the  motion.  If the motion is denied, the moving and
    22  answering papers shall be deemed the complaint and answer, respectively,
    23  unless the court orders otherwise. The  additional  notice  required  by
    24  subdivision (j) of rule 3212 shall be applicable to a motion made pursu-
    25  ant  to  this  section  in any action to collect a debt arising out of a
    26  consumer credit transaction where a consumer is a defendant.
    27    § 11. Subdivision (f) of section 3215 of the civil  practice  law  and
    28  rules,  as  amended by chapter 453 of the laws of 2006, is amended and a
    29  new subdivision (j) is added to read as follows:
    30    (f) Proof. On any application for judgment by default,  the  applicant
    31  shall  file  proof  of  service  of  the summons and the complaint, or a
    32  summons and notice served pursuant to subdivision (b)  of  rule  305  or
    33  subdivision  (a)  of  rule  316  of this chapter, and proof of the facts
    34  constituting the claim, the default and the amount due by affidavit made
    35  by the party, or where the state of New York is the plaintiff, by  affi-
    36  davit  made  by  an attorney from the office of the attorney general who
    37  has or obtains knowledge of such facts through review of  state  records
    38  or otherwise. Where a verified complaint has been served, it may be used
    39  as the affidavit of the facts constituting the claim and the amount due;
    40  in  such case, an affidavit as to the default shall be made by the party
    41  or the party's attorney. In an action arising out of a  consumer  credit
    42  transaction,  if  the plaintiff is not the original creditor, the appli-
    43  cant shall include: (1) an affidavit by the  original  creditor  of  the
    44  facts constituting the debt, the default in payment, the sale or assign-
    45  ment  of the debt, and the amount due at the time of sale or assignment;
    46  (2) for each subsequent assignment or sale of the debt to another  enti-
    47  ty,  an  affidavit  of sale of the debt by the debt seller, completed by
    48  the seller or assignor; and (3) an affidavit of a witness of the  plain-
    49  tiff,  which  includes  a  chain  of title of the debt, completed by the
    50  plaintiff or plaintiff's witness. The chief administrative  judge  shall
    51  issue  form  affidavits  to satisfy the requirements of this subdivision
    52  for consumer credit transactions.  When  jurisdiction  is  based  on  an
    53  attachment  of  property,  the  affidavit  must  state  that an order of
    54  attachment granted in the action has been levied on the property of  the
    55  defendant,  describe  the property and state its value. Proof of mailing

        A. 2382                             7
 
     1  the notice required by subdivision (g) of this section,  where  applica-
     2  ble, shall also be filed.
     3    (j)  Affidavit. A request for a default judgment entered by the clerk,
     4  must be accompanied by an affidavit  by  the  plaintiff  or  plaintiff's
     5  attorney  stating that after reasonable inquiry, he or she has reason to
     6  believe that the statute of limitations has  not  expired.    The  chief
     7  administrative judge shall issue form affidavits to satisfy the require-
     8  ments of this subdivision for consumer credit transactions.
     9    §  12.  The  civil  practice  law and rules is amended by adding a new
    10  section 7516 to read as follows:
    11    § 7516. Confirmation of an award based on  a  consumer  credit  trans-
    12  action.  In any proceeding under section 7510 of this article to confirm
    13  an award based on a consumer credit transaction, the  party  seeking  to
    14  confirm  the  award  shall  plead the actual terms and conditions of the
    15  agreement to arbitrate. The party shall attach to its petition  (a)  the
    16  agreement  to  arbitrate;  (b)  the  demand for arbitration or notice of
    17  intention to arbitrate, with proof of service; and (c)  the  arbitration
    18  award,  with proof of service. If the award does not contain a statement
    19  of the claims submitted for arbitration, of the claims ruled upon by the
    20  arbitrator, and of the calculation of figures used by the arbitrator  in
    21  arriving at the award, then the petition shall contain such a statement.
    22  The  court  shall not grant confirmation of an award based on a consumer
    23  credit transaction unless the party seeking to  confirm  the  award  has
    24  complied with this section.
    25    §  13. Subdivision 2 of section 212 of the judiciary law is amended by
    26  adding a new paragraph (aa) to read as follows:
    27    (aa) Not later than  January  first,  two  thousand  twenty-two,  make
    28  available  Spanish  translations  of  the additional notices in consumer
    29  credit transaction actions and proceedings required by section 306-d and
    30  subdivision (j) of rule 3212 of the civil practice law  and  rules,  and
    31  make  available  form affidavits required for a motion for default judg-
    32  ment in a consumer credit transaction action or proceeding  required  by
    33  subdivision (f) of section 3215 of the civil practice law and rules.
    34    §  14.  Subdivision  (c) of section 5019 of the civil practice law and
    35  rules is amended to read as follows:
    36    (c) Change in judgment creditor.  A person other than the party recov-
    37  ering a judgment who becomes entitled to enforce it, shall file  in  the
    38  office  of  the clerk of the court in which the judgment was entered or,
    39  in the case of a judgment of a court other than the supreme, county or a
    40  family court which has been docketed by the clerk of the county in which
    41  it was entered, in the office of  such  county  clerk,  a  copy  of  the
    42  instrument  on  which  his  authority is based, acknowledged in the form
    43  required to entitle a deed to be recorded, or, if his authority is based
    44  on a court order, a certified copy of the order. Upon  such  filing  the
    45  clerk  shall  make  an  appropriate entry on his docket of the judgment.
    46  This subdivision shall not apply when there is a change to the owner  of
    47  a  debt  through a sale, assignment, or other transfer where no judgment
    48  exists.
    49    § 15. This act shall take effect immediately; provided, however,  that
    50  sections  two,  three,  five,  six,  seven, eight, nine, ten, eleven and
    51  twelve shall take effect on the one hundred eightieth day after it shall
    52  have become a law and shall apply to actions and  proceedings  commenced
    53  on  or after such date; and provided, further, that section four of this
    54  act shall take effect on the one hundred fiftieth  day  after  this  act
    55  shall have become a law.
Go to top