Expert: Jason Shear, Esq. - 9/3/2009

Question
QUESTION: Hi:

I was sued by Cohen and Slamowitz earlier this year.  Their client is a collection agency that bought my old credit card account.  I sent in a general denial as my answer.  When I was doing some research I read some of your posts that said making the debt buyer prove "standing" is an important defense in these cases.

Unfortanely, I did not have any affirmative defenses in my answer.
I also read that according to NY law I only had 20 days to amend my answer to use the defense that they lack standing.  Is there anything I can do?

I don't want to lose an important defense!  I live in New York.  Thank You!


ANSWER: Paula:

Good question.  Yes, making the plaintiff prove standing is an important defense in a case brought by a debt buyer.  The plaintiff seeking to recover on this alleged account has the burden of proof to show that it has the right to seek collection on the obligation because it owns your account.  You should not have to litigate a debt with one collection agency, only to find out later that another agency is the true owner and that you must now litigate the same claim with this second party.

In your case, the collection agency can not merely show that it received an assignment of the obligation, if the assignor was not the original creditor.  Instead, the plaintiff must show a continuous, unbroken chain of assignments from the original creditor to the entity collecting on the debt.  The plaintiff must prove that it owns your alleged debt through tender of proper documentation specifically relating to your particular account at issue.  It is important to remember that mere affirmation of the assignment in an affidavit is insufficient; the collection agency/plaintiff must submit actual contracts of assignment identifying the account at issue (your account), with proper authentication of those accounts using affidavits.    

You need to file a Motion pursuant to New York CPLR 3025(b) for leave to file an Amended Verified Answer to assert the affirmative defense that the plaintiff lacks standing.

The case law and statutory law of New York clearly establishes that if a party recognizes a defect in their pleadings, even if the time to freely amend has passed, that party should be granted leave to amend absent prejudice or surprise resulting directly from a delay.

Hope this answers your question.  If you have any follow up questions or need further assistance, please do not hesitate to ask.

Jason Shear, Esq.
Shear Law Firm, P.C.
Attorney at Law
Admitted in NY & NJ
4160 Harlem Rd.
Buffalo, New York 14226
Phone: (716) 566-8988


---------- FOLLOW-UP ----------

QUESTION: Thank you so much for that great response and informative answer.  However, handling this case seems to too overwhelming and complicated for me.  Do you represent consumers in these cases?  I live in NYC and notice you are in Buffalo, can you take my case?  Thanks!

Answer
Paula,

Yes, I handle consumer cases in New York City.  Please call me directly for help with this case.

Jason Shear, Esq.
Shear Law Firm, P.C.
Attorney at Law
Admitted in NY & NJ
4160 Harlem Rd.
Buffalo, New York 14226
Phone: (716) 566-8988





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