N.Y. Comp. Codes R. & Regs. Tit. 22 § 210.14-a - Proof of default judgement in consumer credit matters (Uniform Civil Rules for the City Courts Outside the City of New York)
(a)
Definitions.
(1) For purposes of this section a
consumer credit transaction means a revolving or open-end
credit transaction wherein credit is extended by a financial institution, which
is in the business of extending credit, to an individual primarily for
personal, family or household purposes, the terms of which include periodic
payment provisions, late charges and interest accrual. A consumer credit
transaction does not include debt incurred in connection with, among others,
medical services, student loans, auto loans or retail installment
contracts.
(2)
Original creditor means the financial institution that owned
the consumer credit account at the time the account was charged off, even if
that financial institution did not originate the account. Charged-off
consumer debt means a consumer debt that has been removed from an
original creditor's books as an asset and treated as a loss or
expense.
(3)
Debt buyer means a person or entity that is regularly engaged
in the business of purchasing charged-off consumer debt for collection
purposes, whether it collects the debt itself, hires a third party for
collection, or hires an attorney for collection litigation.
(4)
Credit
agreement means a copy of a contract or other document governing the
account provided to the defendant evidencing the defendant' s agreement to the
debt, the amount due on the account, the name of the original creditor, the
account number, and the name and address of the defendant. The charge-off
statement or the monthly statement recording the most recent purchase
transaction, payment or balance transfer shall be deemed sufficient evidence of
a credit agreement.
(b)
Applicability.
Together with any other affidavits required under New York law, the following
affidavits shall be required as part of a default judgment application arising
from a consumer credit transaction where such application is made to the clerk
under CPLR 3215(a).
(1) In
original creditor actions, the affidavit set forth in subdivision (c) of this
section, effective October 1, 2014.
(2) In debt buyer actions involving debt
purchased from an original creditor on or after October 1, 2014, the affidavits
set forth in subdivision (d) of this section.
(3) Except as set forth in paragraph
four of this subdivision, the affidavits set forth in subdivision (d) of this
section shall not be required in debt buyer actions involving debt purchased
from an original creditor before October 1, 2014. The plaintiff shall be
required to affirm in its affidavit of facts that the debt was purchased from
the original creditor before October 1, 2014 and attach proof of that
fact.
(4) Effective
July 1, 2015, the affidavits set forth in subdivision (d) of this section shall
be required in all debt buyer actions notwithstanding that the debt was
purchased from an original creditor before October 1, 2014.
(5) In all original creditor
and debt buyer actions, the affidavit of non-expiration of statute of
limitations set forth in subdivision (e) of this section, effective October 1,
2014.
(c)
Where the plaintiff is the original creditor, the plaintiff must submit the
AFFIDAVIT OF FACTS BY ORIGINAL CREDITOR.
(d) Where the plaintiff is a debt buyer,
the plaintiff must submit the AFFIDAVIT OF FACTS AND PURCHASE OF ACCOUNT BY
DEBT BUYER PLAINTIFF, the AFFIDAVIT OF FACTS AND SALE OF ACCOUNT BY ORIGINAL
CREDITOR and, if applicable, the AFFIDAVIT OF PURCHASE AND SALE OF ACCOUNT BY
DEBT SELLER for each debt seller who owned the debt prior to the
plaintiff.
(e) In all
applications for a default judgment arising from a consumer credit transaction,
the plaintiff must submit the AFFIRMATION OF NON-EXPIRATION OF STATUTE OF
LIMITATIONS executed by counsel.
(f) The affidavits required by this
section may not be combined. Affidavits may be augmented to provide explanatory
details, and supplemental affidavits may be filed for the same
purpose.
(g) The
affidavits required by this section shall be supported by exhibits, including a
copy of the credit agreement as defined in this section, the bill of sale or
written assignment of the account where applicable, and relevant business
records of the Original Creditor that set forth the name of the defendant; the
last four digits of the account number; the date and amount of the charge-off
balance; the date and amount of the last payment, if any; the amounts of any
post-charge-off interest and post-charge-off fees and charges, less any
post-charge-off credits or payments made by or on behalf the defendant; and the
balance due at the time of sale.
(h) If a verified complaint has been
served, it may be used as the plaintiff's affidavit of facts where it satisfies
the elements of the AFFIDAVIT OF FACTS AND PURCHASE OF ACCOUNT BY DEBT BUYER
PLAINTIFF.
(i) The
County Clerk or clerk of the court shall refuse to accept for filing a default
judgment application that does not comply with the requirements of this
section.
(j) Nothing
in this section is intended to impair a plaintiff's ability to make a default
judgment application to the court as authorized under CPLR 3215(b).
Notes
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