Watering down 4518(a) to historic lows

Portfolio Recovery Assoc., LLC v Lall, 2015 NY Slip Op 03284 (1st Dept. 2015)

For anyone who is worried about what a reversal of Vivanne Etienne and the professional affidavit signing doctor could mean, you only need to read Portfolio to see what CPLR 4518(a) really means in the world of assigned debt.

(1) “Plaintiff’s proof of the underlying debt obligation was shown through defendant’s testimony that he used the credit card issued by plaintiff’s assignor and by the self-authenticating account statements (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336 , lv denied 7 NY3d 715 ).”

Key line from Merrill Lunch

(“The amount of the indebtedness was established by the self-authenticating monthly statements of account sent to defendants and setting forth the balance due on the loan (see Elkaim v Elkaim, 176 AD2d 116, 117 , appeal dismissed 78 NY2d 1072 ). Moreover, a proper business records foundation for these statements was laid by plaintiff’s witness, who testified, inter alia, that plaintiff relies on these statements in the regular course of its business even though they were prepared not by plaintiff but for plaintiff by a sister company“)

(2) “Evidence of the assignment of defendant’s account was the affidavit of sale, which, although created by the assignor, was properly introduced as a business record through the testimony of plaintiff’s employee (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 ). Plaintiff’s reliance on documents of this type was a sufficient basis on which to permit its employee to lay the [*2]foundation for the admission of the affidavit of sale; contrary to defendant’s contention, it was not necessary that there be a special relationship between plaintiff and its assignor.”

This is a sad case on the state of evidence law in this state.  Allowing a purchaser of debt to lay a foundation for the admission of an original creditor’s documents is patently unfair, especially when the debt purchaser has no knowledge of what the original creditor did.

This case conflicts with: Unifund CCR Partners v. Youngman, 89 A.D.3d 1377 (4th Dept. 2011)

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