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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Nov 08, 2021 |
signed chap.593 |
| Oct 27, 2021 |
delivered to governor |
| Jun 02, 2021 |
returned to senate passed assembly ordered to third reading cal.350 substituted for a2382 |
| May 25, 2021 |
referred to codes delivered to assembly passed senate |
| Mar 01, 2021 |
advanced to third reading |
| Feb 24, 2021 |
2nd report cal. |
| Feb 23, 2021 |
1st report cal.405 |
| Jan 06, 2021 |
referred to judiciary |
Senate Bill S153
Signed By Governor2021-2022 Legislative Session
Enacts the "consumer credit fairness act"
download bill text pdfSponsored By
(D) 6th Senate District
Archive: Last Bill Status - Signed by Governor
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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Floor Vote: May 25, 2021
aye (43)- Addabbo Jr.
- Bailey
- Benjamin
- Biaggi
- Breslin
- Brisport
- Brooks
- Brouk
- Comrie
- Cooney
- Felder
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hinchey
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Liu
- Mannion
- May
- Mayer
- Myrie
- Parker
- Persaud
- Ramos
- Reichlin-Melnick
- Rivera
- Ryan
- Salazar
- Sanders Jr.
- Savino
- Sepúlveda
- Serrano
- Skoufis
- Stavisky
- Stewart-Cousins
- Thomas
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co-Sponsors
(D) 36th Senate District
(D, WF) Senate District
(D) Senate District
(D) 22nd Senate District
(D, WF) 41st Senate District
(D, WF) 47th Senate District
(D, WF) 31st Senate District
(D, IP, WF) Senate District
(D, WF) 28th Senate District
(D, WF) 48th Senate District
(D, WF) 37th Senate District
(D) 19th Senate District
(D, WF) 13th Senate District
(D, WF) 33rd Senate District
(D) 32nd Senate District
2021-S153 (ACTIVE) - Details
2021-S153 (ACTIVE) - Summary
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
2021-S153 (ACTIVE) - Sponsor Memo
BILL NUMBER: S153
SPONSOR: THOMAS
TITLE OF BILL:
An act to amend the civil practice law and rules and the judiciary law,
in relation to consumer credit transactions
PURPOSE OF BILL:
This bill would strengthen consumer protections in consumer debt
collection proceedings.
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 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 plaintiff's witness. The bill will also require that applications for default judg- ments in consumer credit actions include a statement that after reason- able inquiry, the plaintiff or its attorney has reason to believe that the statute of limitations has not expired. Finally, the chief adminis- trative 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 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 the amount claimed and results in collection efforts that continue for years, including lawsuits filed after the statute of limi- tations 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 lawsuit resulting in a default judgment against the defendant without a requirement to produce proof of the debt sued on. These default judgments 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 limita- tions 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 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 providers, domestic violence prevention advocates, and the Office of Court Administration highlighted the insid- ious 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 identity 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 a 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 resulting 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 minimal information provided on the initial legal papers and may there- fore not respond. This legislation will be particularly important for domestic 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:S.4827(Thomas)/A.6909(Weinstein)- Referred to Judiciary. 2019:S.4827(Thomas)/A.6909 (Weinstein) - Judiciary Committee Discharged and Committed to Rules. 2018:S.8959(Felder)/A.1752(Weinstein)- Referred to Rules. 2017:A.1752(Weinstein)- Reported and Referred to Codes. 2016:A.4438(Weinstein)- Referred to Judiciary. 2015:A.4438(Weinstein)- Reported and Referred to Codes. 2013-14: S.2454 (Savino) / A.9053 (Weinstein) - Referred to Judiciary. 2012: S.677 (Peralta) / A.633 (Weinstein) - Referred to Judiciary. 2011: S.677(Peralta)/A.633(Weinstein)Codes Committee Discharged and Committed to Judiciary./ A.7558(Weinstein)- Reported and Committed to 2010:S.4398(Schneiderman) Finance. 2009:5.4398(Schneiderman)/ A.7558(Weinstein)- Referred to 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.
2021-S153 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
153
2021-2022 Regular Sessions
I N S E N A T E
(PREFILED)
January 6, 2021
___________
Introduced by Sen. THOMAS -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
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:
Section 1. Short title. This act shall be known and may be cited as
the "consumer credit fairness act".
§ 2. Section 105 of the civil practice law and rules is amended by
adding two new subdivisions (h-1) and (q-1) to read as follows:
(H-1) FINANCE CHARGE. THE TERM "FINANCE CHARGE" MEANS THE COST OF
CONSUMER CREDIT AS A DOLLAR AMOUNT, INCLUDES ANY CHARGE PAYABLE DIRECTLY
OR INDIRECTLY BY THE CONSUMER AND IMPOSED DIRECTLY OR INDIRECTLY BY THE
CREDITOR AS AN INCIDENT TO OR A CONDITION OF THE EXTENSION OF CREDIT,
AND DOES NOT INCLUDE ANY CHARGE OF A TYPE PAYABLE IN A COMPARABLE CASH
TRANSACTION.
(Q-1) ORIGINAL CREDITOR. THE TERM "ORIGINAL CREDITOR" MEANS THE ENTITY
THAT OWNED A CONSUMER CREDIT ACCOUNT AT THE DATE OF DEFAULT GIVING RISE
TO A CAUSE OF ACTION.
§ 3. Subdivision 2 of section 213 of the civil practice law and rules,
as amended by chapter 709 of the laws of 1988, is amended to read as
follows:
2. an action upon a contractual obligation or liability, express or
implied, except as provided in section two hundred thirteen-a OR TWO
HUNDRED FOURTEEN-I of this article or article 2 of the uniform commer-
cial code or article 36-B of the general business law;
§ 4. The civil practice law and rules is amended by adding a new
section 214-i to read as follows:
§ 214-I. CERTAIN ACTIONS ARISING OUT OF CONSUMER CREDIT TRANSACTIONS
TO BE COMMENCED WITHIN THREE YEARS. AN ACTION ARISING OUT OF A CONSUMER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00040-01-1
S. 153 2
CREDIT TRANSACTION WHERE A PURCHASER, BORROWER OR DEBTOR IS A DEFENDANT
MUST BE COMMENCED WITHIN THREE YEARS, EXCEPT AS PROVIDED IN SECTION TWO
HUNDRED THIRTEEN-A OF THIS ARTICLE OR ARTICLE 2 OF THE UNIFORM COMMER-
CIAL CODE OR ARTICLE 36-B OF THE GENERAL BUSINESS LAW. NOTWITHSTANDING
ANY OTHER PROVISION OF LAW, WHEN THE APPLICABLE LIMITATIONS PERIOD
EXPIRES, ANY SUBSEQUENT PAYMENT TOWARD, WRITTEN OR ORAL AFFIRMATION OF
OR OTHER ACTIVITY ON THE DEBT DOES NOT REVIVE OR EXTEND THE LIMITATIONS
PERIOD.
§ 5. The civil practice law and rules is amended by adding a new
section 306-d to read as follows:
§ 306-D. ADDITIONAL MAILING OF NOTICE IN AN ACTION ARISING OUT OF A
CONSUMER CREDIT TRANSACTION. (A) AT THE TIME OF FILING WITH THE CLERK OF
THE PROOF OF SERVICE OF THE SUMMONS AND COMPLAINT IN AN ACTION ARISING
OUT OF A CONSUMER CREDIT TRANSACTION, THE PLAINTIFF SHALL SUBMIT TO THE
CLERK A STAMPED, UNSEALED ENVELOPE ADDRESSED TO THE DEFENDANT TOGETHER
WITH A WRITTEN NOTICE IN CLEAR TYPE OF NO LESS THAN TWELVE-POINT IN
SIZE, IN BOTH ENGLISH AND SPANISH, AND CONTAINING THE FOLLOWING
LANGUAGE:
ADDITIONAL NOTICE OF LAWSUIT
(NAME OF COURT)
(COUNTY)
(STREET ADDRESS, ROOM NUMBER)
(CITY, STATE, ZIP CODE)
(NAME OF DEFENDANT)
(ADDRESS OF DEFENDANT)
PLAINTIFF:
DEFENDANT:
NAME OF ORIGINAL CREDITOR, UNLESS SAME:
INDEX NUMBER:
ATTENTION: A LAWSUIT HAS BEEN FILED AGAINST YOU CLAIMING THAT YOU OWE
MONEY FOR AN UNPAID CONSUMER DEBT.
YOU MAY WISH TO CONTACT AN ATTORNEY.
YOU SHOULD RESPOND TO THE LAWSUIT AS SOON AS POSSIBLE BY FILING AN
"ANSWER" WHICH MAY BE DONE AT THE COURT CLERK'S OFFICE LISTED ABOVE.
IF YOU DO NOT RESPOND TO THE LAWSUIT, THE COURT MAY ENTER A MONEY
JUDGMENT AGAINST YOU. ONCE ENTERED, A JUDGMENT IS GOOD AND CAN BE USED
AGAINST YOU FOR TWENTY YEARS, AND YOUR PERSONAL PROPERTY AND MONEY,
INCLUDING A PORTION OF YOUR PAYCHECK AND/OR BANK ACCOUNT, MAY BE TAKEN
FROM YOU. ALSO, A JUDGMENT MAY AFFECT YOUR CREDIT SCORE AND CAN AFFECT
YOUR ABILITY TO RENT A HOME, FIND A JOB, OR TAKE OUT A LOAN.
YOU CANNOT BE ARRESTED OR SENT TO JAIL FOR OWING A DEBT.
ADDITIONAL INFORMATION CAN BE FOUND AT THE NEW YORK STATE COURT SYSTEM
WEBSITE.
SOURCES OF INFORMATION AND ASSISTANCE:
THE COURT ENCOURAGES YOU TO INFORM YOURSELF ABOUT YOUR OPTIONS AS A
DEFENDANT IN THIS LAWSUIT. IN ADDITION TO SEEKING ASSISTANCE FROM A
PRIVATE ATTORNEY OR LEGAL AID OFFICE, THERE ARE FREE LEGAL ASSISTANCE
COMPUTER PROGRAMS THAT YOU CAN USE ONLINE TO HELP YOU REPRESENT YOURSELF
IN THIS LAWSUIT.
FOR FURTHER INFORMATION, OR TO LOCATE A LEGAL AID PROGRAM NEAR YOU, YOU
MAY VISIT THE LAWHELPNY WEBSITE OR THE NEW YORK STATE COURT SYSTEM
S. 153 3
WEBSITE, WHICH HAS INFORMATION FOR REPRESENTING YOURSELF AND LINKS TO
OTHER RESOURCES AT: ___________________.
(B) THE FACE OF THE ENVELOPE SHALL BE ADDRESSED TO THE DEFENDANT AT
THE ADDRESS AT WHICH PROCESS WAS SERVED, AND SHALL CONTAIN THE DEFEND-
ANT'S NAME, ADDRESS (INCLUDING APARTMENT NUMBER) AND ZIP CODE. THE FACE
OF THE ENVELOPE ALSO SHALL STATE THE APPROPRIATE CLERK'S OFFICE AS ITS
RETURN ADDRESS.
(C) THE CLERK PROMPTLY SHALL MAIL TO THE DEFENDANT THE ENVELOPE
CONTAINING THE ADDITIONAL NOTICE SET FORTH IN SUBDIVISION (A) OF THIS
SECTION. NO DEFAULT JUDGMENT BASED ON THE DEFENDANT'S FAILURE TO ANSWER
SHALL BE ENTERED UNLESS THERE HAS BEEN COMPLIANCE WITH THIS SECTION, AND
AT LEAST TWENTY DAYS HAVE ELAPSED FROM THE DATE OF MAILING BY THE CLERK.
NO DEFAULT JUDGMENT BASED ON THE DEFENDANT'S FAILURE TO ANSWER SHALL BE
ENTERED IF THE ADDITIONAL NOTICE IS RETURNED TO THE COURT AS UNDELIVERA-
BLE. RECEIPT OF THE ADDITIONAL NOTICE BY THE DEFENDANT DOES NOT CONFER
JURISDICTION ON THE COURT IN THE ABSENCE OF PROPER SERVICE OF PROCESS.
(D) THE CHIEF ADMINISTRATIVE JUDGE SHALL ISSUE A SPANISH TRANSLATION
OF THE NOTICE IN SUBDIVISION (A) OF THIS SECTION AND SHALL MAINTAIN AND
PUBLISH THE URL ADDRESS FOR THE WEB PAGE CONTAINING CONSUMER RESOURCES
FOR UNREPRESENTED LITIGANTS.
§ 6. Subdivision (a) of section 3012 of the civil practice law and
rules is amended to read as follows:
(a) Service of pleadings. The complaint may be served with the
summons, EXCEPT THAT IN AN ACTION ARISING OUT OF A CONSUMER CREDIT TRAN-
SACTION, THE COMPLAINT SHALL BE SERVED WITH THE SUMMONS. A subsequent
pleading asserting new or additional claims for relief shall be served
upon a party who has not appeared in the manner provided for service of
a summons. In any other case, a pleading shall be served in the manner
provided for service of papers generally. Service of an answer or reply
shall be made within twenty days after service of the pleading to which
it responds.
§ 7. Rule 3016 of the civil practice law and rules is amended by
adding a new subdivision (j) to read as follows:
(J) CONSUMER CREDIT TRANSACTIONS. IN AN ACTION ARISING OUT OF A
CONSUMER CREDIT TRANSACTION WHERE A PURCHASER, BORROWER OR DEBTOR IS A
DEFENDANT, THE CONTRACT OR OTHER WRITTEN INSTRUMENT ON WHICH THE ACTION
IS BASED SHALL BE ATTACHED TO THE COMPLAINT, HOWEVER, FOR THE PURPOSES
OF THIS SECTION, IF THE ACCOUNT WAS A REVOLVING CREDIT ACCOUNT, THE
CHARGE-OFF STATEMENT MAY BE ATTACHED TO THE COMPLAINT INSTEAD OF THE
CONTRACT OR OTHER WRITTEN INSTRUMENT, AND THE FOLLOWING INFORMATION
SHALL BE SET FORTH IN THE COMPLAINT:
(1) THE NAME OF THE ORIGINAL CREDITOR;
(2) THE LAST FOUR DIGITS OF THE ACCOUNT NUMBER PRINTED ON THE MOST
RECENT MONTHLY STATEMENT RECORDING A PURCHASE TRANSACTION, LAST PAYMENT
OR BALANCE TRANSFER;
(3) THE DATE AND AMOUNT OF THE LAST PAYMENT OR, IF NO PAYMENT WAS
MADE, A STATEMENT THAT THE PURCHASER, BORROWER OR DEBTOR MADE NO PAYMENT
ON THE ACCOUNT;
(4) IF THE COMPLAINT CONTAINS A CAUSE OF ACTION BASED ON AN ACCOUNT
STATED, THE DATE ON OR ABOUT WHICH THE FINAL STATEMENT OF ACCOUNT WAS
PROVIDED TO THE DEFENDANT;
(5) (A) EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) OF THIS PARAGRAPH, AN
ITEMIZATION OF THE AMOUNT SOUGHT, BY (I) PRINCIPAL; (II) FINANCE CHARGE
OR CHARGES; (III) FEES IMPOSED BY THE ORIGINAL CREDITOR; (IV) COLLECTION
COSTS; (V) ATTORNEY'S FEES; (VI) INTEREST; AND (VII) ANY OTHER FEES AND
CHARGES.
S. 153 4
(B) IF THE ACCOUNT WAS A REVOLVING CREDIT ACCOUNT, AN ITEMIZATION OF
THE AMOUNT SOUGHT, BY: (I) THE TOTAL AMOUNT OF THE DEBT DUE AS OF
CHARGE-OFF; (II) THE TOTAL AMOUNT OF INTEREST ACCRUED SINCE CHARGE-OFF;
(III) THE TOTAL AMOUNT OF NON-INTEREST CHARGES OR FEES ACCRUED SINCE
CHARGE-OFF; AND (IV) THE TOTAL AMOUNT OF PAYMENTS AND/OR CREDITS MADE ON
THE DEBT SINCE CHARGE-OFF;
(6) THE ACCOUNT BALANCE PRINTED ON THE MOST RECENT MONTHLY STATEMENT
RECORDING A PURCHASE TRANSACTION, LAST PAYMENT OR BALANCE TRANSFER;
(7) (A) WHETHER THE PLAINTIFF IS THE ORIGINAL CREDITOR.
(B) IF THE PLAINTIFF IS NOT THE ORIGINAL CREDITOR, THE COMPLAINT SHALL
ALSO STATE (I) THE DATE ON WHICH THE DEBT WAS SOLD OR ASSIGNED TO THE
PLAINTIFF; (II) THE NAME OF EACH PREVIOUS OWNER OF THE ACCOUNT FROM THE
ORIGINAL CREDITOR TO THE PLAINTIFF AND THE DATE ON WHICH THE DEBT WAS
ASSIGNED TO THAT OWNER BY THE ORIGINAL CREDITOR OR SUBSEQUENT OWNER; AND
(III) THE AMOUNT DUE AT THE TIME OF THE SALE OR ASSIGNMENT OF THE DEBT
BY THE ORIGINAL CREDITOR; AND
(8) ANY MATTERS REQUIRED TO BE STATED WITH PARTICULARITY PURSUANT TO
RULE 3015 OF THIS ARTICLE.
§ 8. Subdivision (e) of rule 3211 of the civil practice law and rules,
as amended by chapter 616 of the laws of 2005, is amended to read as
follows:
(e) Number, time and waiver of objections; motion to plead over. At
any time before service of the responsive pleading is required, a party
may move on one or more of the grounds set forth in subdivision (a) OF
THIS RULE, and no more than one such motion shall be permitted. Any
objection or defense based upon a ground set forth in paragraphs one,
three, four, five and six of subdivision (a) OF THIS RULE is waived
unless raised either by such motion or in the responsive pleading. A
motion based upon a ground specified in paragraph two, seven or ten of
subdivision (a) OF THIS RULE may be made at any subsequent time or in a
later pleading, if one is permitted; an objection that the summons and
complaint, summons with notice, or notice of petition and petition was
not properly served is waived if, having raised such an objection in a
pleading, the objecting party does not move for judgment on that ground
within sixty days after serving the pleading, unless the court extends
the time upon the ground of undue hardship. The foregoing sentence shall
not apply in any proceeding TO COLLECT A DEBT ARISING OUT OF A CONSUMER
CREDIT TRANSACTION WHERE A CONSUMER IS A DEFENDANT OR under subdivision
one or two of section seven hundred eleven of the real property actions
and proceedings law. The papers in opposition to a motion based on
improper service shall contain a copy of the proof of service, whether
or not previously filed. An objection based upon a ground specified in
paragraph eight or nine of subdivision (a) OF THIS RULE is waived if a
party moves on any of the grounds set forth in subdivision (a) OF THIS
RULE without raising such objection or if, having made no objection
under subdivision (a) OF THIS RULE, he or she does not raise such
objection in the responsive pleading WHICH, IN ANY ACTION TO COLLECT A
DEBT ARISING OUT OF A CONSUMER CREDIT TRANSACTION WHERE A CONSUMER IS A
DEFENDANT, INCLUDES ANY AMENDED RESPONSIVE PLEADING.
§ 9. Rule 3212 of the civil practice law and rules is amended by
adding a new subdivision (j) to read as follows:
(J) ADDITIONAL NOTICE IN ANY ACTION TO COLLECT A DEBT ARISING OUT OF
A CONSUMER CREDIT TRANSACTION WHERE A CONSUMER IS A DEFENDANT.
1. AT THE TIME OF SERVICE OF A NOTICE OF MOTION ANY PART OF WHICH
REQUESTS SUMMARY JUDGMENT IN WHOLE OR IN PART, WHERE THE MOVING PARTY
IS A PLAINTIFF AND THE RESPONDENT IS A CONSUMER DEFENDANT IN AN ACTION
S. 153 5
TO COLLECT A DEBT ARISING OUT OF A CONSUMER CREDIT TRANSACTION, AND
WHERE THE CONSUMER DEFENDANT AGAINST WHOM SUMMARY JUDGMENT IS SOUGHT IS
NOT REPRESENTED BY AN ATTORNEY, THE PLAINTIFF SHALL SUBMIT TO THE CLERK
A STAMPED, UNSEALED ENVELOPE ADDRESSED TO THE DEFENDANT TOGETHER WITH
THE FOLLOWING ADDITIONAL NOTICE IN ENGLISH AND SPANISH TO BE PRINTED IN
CLEAR TYPE NO LESS THAN TWELVE-POINT IN SIZE:
IMPORTANT NOTICE
THE PLAINTIFF HAS ASKED THE COURT TO ENTER JUDGMENT AGAINST YOU BY
MAKING A MOTION FOR SUMMARY JUDGMENT. KEEP THIS NOTICE AND THE ENVELOPE
IT CAME IN. THE MOTION FOR SUMMARY JUDGMENT WAS SEPARATELY SERVED ON
YOU. TO AVOID ENTRY OF JUDGMENT:
(1) YOU MUST APPEAR IN COURT AS DIRECTED BELOW:
WHERE: NAME OF COURT, STREET ADDRESS, ROOM NUMBER
WHEN: DATE AND TIME
(2) YOU SHOULD OPPOSE THE MOTION IN WRITING.
HOW TO OPPOSE THE MOTION:
(1) STATE THE LEGAL REASONS WHY THE COURT SHOULD NOT ENTER JUDGMENT
AGAINST YOU, INCLUDING YOUR DEFENSES.
(2) STATE THE FACTS THAT SUPPORT YOUR DEFENSES.
(3) ATTACH AFFIDAVITS AND/OR EXHIBITS TO SUPPORT THE FACTS YOU ASSERT.
(A) AFFIDAVITS ARE SWORN STATEMENTS OF WITNESSES (INCLUDING YOU) WHO
STATE FACTS THEY KNOW TO BE TRUE. THE AFFIDAVIT SHOULD STATE THE FACTS
AND HOW THE WITNESS KNOWS THEM. ALSO, THE AFFIDAVIT SHOULD EXPLAIN ANY
EXHIBITS. AN AFFIDAVIT OF SERVICE IS AN AFFIDAVIT THAT STATES HOW AND
WHEN PAPERS WERE SERVED. AN AFFIDAVIT MUST BE SIGNED IN FRONT OF A
NOTARY. FREE FORMS ARE AVAILABLE ON THE NEW YORK STATE COURT SYSTEM
WEBSITE AT: ____________________.
(B) EXHIBITS ARE COPIES OF DOCUMENTS. EXHIBITS ARE USUALLY ATTACHED TO
AFFIDAVITS.
(4) HAVE SOMEONE (NOT YOU OR ANOTHER DEFENDANT IN THE LAWSUIT) MAIL A
COPY OF YOUR OPPOSITION TO THE PLAINTIFF'S ATTORNEY BEFORE YOUR COURT
DATE AND HAVE THEM PREPARE AN AFFIDAVIT OF SERVICE BY MAIL.
(5) BRING A COPY OF YOUR OPPOSITION AND THE AFFIDAVIT OF SERVICE TO
YOUR COURT DATE.
(6) ATTEND YOUR COURT DATE.
IF YOU NEED MORE TIME:
IF YOU NEED MORE TIME TO PREPARE YOUR WRITTEN RESPONSE, YOU SHOULD
APPEAR AT YOUR COURT DATE AND ASK THE JUDGE FOR MORE TIME. YOU CAN ALSO
ASK THE JUDGE TO REFER YOU FOR LEGAL HELP.
IF YOU NEED LEGAL HELP:
YOU MAY SEEK LEGAL HELP FROM A PRIVATE ATTORNEY OR A LEGAL AID OFFICE.
SOME COURTS HAVE FREE LEGAL ASSISTANCE PROGRAMS FOR PEOPLE WITHOUT
LAWYERS. YOU CAN FIND RESOURCES ON THE NEW YORK STATE COURT SYSTEM
WEBSITE AT: ____________________.
2. THE CLERK PROMPTLY SHALL MAIL TO THE DEFENDANT THE ENVELOPE
CONTAINING THE ADDITIONAL NOTICE SET FORTH IN PARAGRAPH ONE OF THIS
SUBDIVISION AND NOTE THE DATE OF MAILING IN THE CASE RECORD. SUMMARY
JUDGMENT SHALL NOT BE ENTERED BASED ON DEFENDANT'S FAILURE TO OPPOSE THE
MOTION UNLESS THERE HAS BEEN COMPLIANCE WITH THIS SECTION AND AT LEAST
FOURTEEN DAYS HAVE ELAPSED FROM THE DATE OF MAILING BY THE CLERK OR
NINETEEN DAYS IF THE PLAINTIFF'S NOTICE OF MOTION DEMANDS ADDITIONAL
TIME UNDER SUBDIVISION (B) OF RULE 2214 OF THIS CHAPTER.
3. THE CHIEF ADMINISTRATIVE JUDGE SHALL ISSUE A SPANISH TRANSLATION OF
THE NOTICE IN PARAGRAPH ONE OF THIS SUBDIVISION AND SHALL MAINTAIN AND
PUBLISH THE URL ADDRESS FOR THE WEB PAGE CONTAINING CONSUMER CREDIT
RESOURCES FOR UNREPRESENTED LITIGANTS.
S. 153 6
§ 10. Section 3213 of the civil practice law and rules, as amended by
chapter 210 of the laws of 1969, is amended to read as follows:
§ 3213. Motion for summary judgment in lieu of complaint. When an
action is based upon an instrument for the payment of money only or upon
any judgment, the plaintiff may serve with the summons a notice of
motion for summary judgment and the supporting papers in lieu of a
complaint. The summons served with such motion papers shall require the
defendant to submit answering papers on the motion within the time
provided in the notice of motion. The minimum time such motion shall be
noticed to be heard shall be as provided by subdivision (a) of rule 320
for making an appearance, depending upon the method of service. If the
plaintiff sets the hearing date of the motion later than the minimum
time therefor, he may require the defendant to serve a copy of his
answering papers upon him within such extended period of time, not
exceeding ten days, prior to such hearing date. No default judgment may
be entered pursuant to subdivision (a) of section 3215 prior to the
hearing date of the motion. If the motion is denied, the moving and
answering papers shall be deemed the complaint and answer, respectively,
unless the court orders otherwise. THE ADDITIONAL NOTICE REQUIRED BY
SUBDIVISION (J) OF RULE 3212 SHALL BE APPLICABLE TO A MOTION MADE PURSU-
ANT TO THIS SECTION IN ANY ACTION TO COLLECT A DEBT ARISING OUT OF A
CONSUMER CREDIT TRANSACTION WHERE A CONSUMER IS A DEFENDANT.
§ 11. Subdivision (f) of section 3215 of the civil practice law and
rules, as amended by chapter 453 of the laws of 2006, is amended and a
new subdivision (j) is added to read as follows:
(f) Proof. On any application for judgment by default, the applicant
shall file proof of service of the summons and the complaint, or a
summons and notice served pursuant to subdivision (b) of rule 305 or
subdivision (a) of rule 316 of this chapter, and proof of the facts
constituting the claim, the default and the amount due by affidavit made
by the party, or where the state of New York is the plaintiff, by affi-
davit made by an attorney from the office of the attorney general who
has or obtains knowledge of such facts through review of state records
or otherwise. Where a verified complaint has been served, it may be used
as the affidavit of the facts constituting the claim and the amount due;
in such case, an affidavit as to the default shall be made by the party
or the party's attorney. IN AN ACTION ARISING OUT OF A CONSUMER CREDIT
TRANSACTION, IF THE PLAINTIFF IS NOT THE ORIGINAL CREDITOR, THE APPLI-
CANT SHALL INCLUDE: (1) AN AFFIDAVIT BY THE ORIGINAL CREDITOR OF THE
FACTS CONSTITUTING THE DEBT, THE DEFAULT IN PAYMENT, THE SALE OR ASSIGN-
MENT 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 ENTI-
TY, 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 PLAIN-
TIFF, WHICH INCLUDES A CHAIN OF TITLE OF THE DEBT, COMPLETED BY THE
PLAINTIFF OR PLAINTIFF'S WITNESS. THE CHIEF ADMINISTRATIVE JUDGE SHALL
ISSUE FORM AFFIDAVITS TO SATISFY THE REQUIREMENTS OF THIS SUBDIVISION
FOR CONSUMER CREDIT TRANSACTIONS. When jurisdiction is based on an
attachment of property, the affidavit must state that an order of
attachment granted in the action has been levied on the property of the
defendant, describe the property and state its value. Proof of mailing
the notice required by subdivision (g) of this section, where applica-
ble, shall also be filed.
(J) AFFIDAVIT. A REQUEST FOR A DEFAULT JUDGMENT ENTERED BY THE CLERK,
MUST BE ACCOMPANIED BY AN AFFIDAVIT BY THE PLAINTIFF OR PLAINTIFF'S
ATTORNEY STATING THAT AFTER REASONABLE INQUIRY, HE OR SHE HAS REASON TO
S. 153 7
BELIEVE THAT THE STATUTE OF LIMITATIONS HAS NOT EXPIRED. THE CHIEF
ADMINISTRATIVE JUDGE SHALL ISSUE FORM AFFIDAVITS TO SATISFY THE REQUIRE-
MENTS OF THIS SUBDIVISION FOR CONSUMER CREDIT TRANSACTIONS.
§ 12. The civil practice law and rules is amended by adding a new
section 7516 to read as follows:
§ 7516. CONFIRMATION OF AN AWARD BASED ON A CONSUMER CREDIT TRANS-
ACTION. IN ANY PROCEEDING UNDER SECTION 7510 OF THIS ARTICLE TO CONFIRM
AN AWARD BASED ON A CONSUMER CREDIT TRANSACTION, THE PARTY SEEKING TO
CONFIRM THE AWARD SHALL PLEAD THE ACTUAL TERMS AND CONDITIONS OF THE
AGREEMENT TO ARBITRATE. THE PARTY SHALL ATTACH TO ITS PETITION (A) THE
AGREEMENT TO ARBITRATE; (B) THE DEMAND FOR ARBITRATION OR NOTICE OF
INTENTION TO ARBITRATE, WITH PROOF OF SERVICE; AND (C) THE ARBITRATION
AWARD, WITH PROOF OF SERVICE. IF THE AWARD DOES NOT CONTAIN A STATEMENT
OF THE CLAIMS SUBMITTED FOR ARBITRATION, OF THE CLAIMS RULED UPON BY THE
ARBITRATOR, AND OF THE CALCULATION OF FIGURES USED BY THE ARBITRATOR IN
ARRIVING AT THE AWARD, THEN THE PETITION SHALL CONTAIN SUCH A STATEMENT.
THE COURT SHALL NOT GRANT CONFIRMATION OF AN AWARD BASED ON A CONSUMER
CREDIT TRANSACTION UNLESS THE PARTY SEEKING TO CONFIRM THE AWARD HAS
COMPLIED WITH THIS SECTION.
§ 13. Subdivision 2 of section 212 of the judiciary law is amended by
adding a new paragraph (aa) to read as follows:
(AA) NOT LATER THAN JANUARY FIRST, TWO THOUSAND TWENTY-TWO, MAKE
AVAILABLE SPANISH TRANSLATIONS OF THE ADDITIONAL NOTICES IN CONSUMER
CREDIT TRANSACTION ACTIONS AND PROCEEDINGS REQUIRED BY SECTION 306-D AND
SUBDIVISION (J) OF RULE 3212 OF THE CIVIL PRACTICE LAW AND RULES, AND
MAKE AVAILABLE FORM AFFIDAVITS REQUIRED FOR A MOTION FOR DEFAULT JUDG-
MENT IN A CONSUMER CREDIT TRANSACTION ACTION OR PROCEEDING REQUIRED BY
SUBDIVISION (F) OF SECTION 3215 OF THE CIVIL PRACTICE LAW AND RULES.
§ 14. Subdivision (c) of section 5019 of the civil practice law and
rules is amended to read as follows:
(c) Change in judgment creditor. A person other than the party recov-
ering a judgment who becomes entitled to enforce it, shall file in the
office of the clerk of the court in which the judgment was entered or,
in the case of a judgment of a court other than the supreme, county or a
family court which has been docketed by the clerk of the county in which
it was entered, in the office of such county clerk, a copy of the
instrument on which his authority is based, acknowledged in the form
required to entitle a deed to be recorded, or, if his authority is based
on a court order, a certified copy of the order. Upon such filing the
clerk shall make an appropriate entry on his docket of the judgment.
THIS SUBDIVISION SHALL NOT APPLY WHEN THERE IS A CHANGE TO THE OWNER OF
A DEBT THROUGH A SALE, ASSIGNMENT, OR OTHER TRANSFER WHERE NO JUDGMENT
EXISTS.
§ 15. This act shall take effect 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.
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