Asset Acceptance LLC v. Allen

PETER J. SAVAGE, III BUFFALO CITY COURT JUDGE

Unpublished Opinion

DECISION AND ORDER

PETER J. SAVAGE, III BUFFALO CITY COURT JUDGE

By Order to Show Cause granted by this Court (Pridgen, J) on February 26, 2021, defendant Karen Allen seeks vacatur of the default judgment entered in this Court on February 8, 2011 in the amount of $1,1636.68 pursuant to CPLR §5015(a)(4) and dismissal of the action pursuant to CPLR §3211(a)(8). Oral argument of the matter was had before the Court on March 12, 2021, following which the Court reserved decision. The Court has now considered the parties' arguments, reviewed their submissions and had due deliberation thereon.

The basis of defendant's vacatur motion is that service of process was ineffective, depriving the Court of jurisdiction and making any subsequent judgment a nullity. Plaintiff commenced this consumer debt collection action in September 2006 seeking to collect the sum of $8,037.12 from defendant. Defendant was not personally served, but according to the affidavit of process server Michael McNamara, he delivered the summons and complaint to "Charlie Allen (husband)" at 177 Waverly Ave. Buffalo NY 14217. "Charlie Allen" is described as a white male with brown hair between 35-50 years of age, between 5'0" - 6' tall, weighing over 200 pounds and having no notable features such as balding, mustache, beard or glasses.

In her supporting affidavit of February 23, 2021 defendant states that she never saw the summons and complaint until this year when she learned of the judgment and wage execution. She further avers that her husband in 2010 (and presently) is not named "Charlie" but rather L. Edward Allen, and that his appearance conflicts with that of "Charlie" in that her husband in November 2010 (and presently) had and has blond hair and a beard. The rest of the physical description is so general that it could fit a great number of individuals. Defendant further states that she knows no one named "Charlie" who would have been at her home in November 2010. L. Edward Allen has also submitted an affidavit dated February 23, 2021 stating that he has no recollection of receiving a summons and complaint on defendant's behalf, and that in November 2010 his physical appearance was as described by defendant.

Plaintiff's response to defendant's motion is that a process server's affidavit is prima facie evidence of proper service and jurisdiction is established; a "naked denial" of receipt will not disturb this presumption. Plaintiff ignores defendant's showing that the claimed service is riddled with errors ranging from the name of defendant's husband, to his physical description and the failure to note distinguishing features. Far from being a "naked denial", defendant has put forth a "specific and detailed affidavit" sufficient to rebut the presumption of proper service and require a traverse hearing. See Cach, LLC v. Ryan, 158 A.D.3d 1193 (4^th Dept. 2018); Garvey v Global Asset Management Solutions, Inc.,____A.D.3d____, 2021 WL 1044772 (4th Dept 2021).

Plaintiff further argues that defendant's motion must be denied as untimely and lacking the requisite showing of excusable default and meritorious defense. This argument is misplaced in that where, as here, a judgment debtor moves to vacate a judgment pursuant to CPLR §5015(a)(4), lack of jurisdiction to render the judgment, there is neither a time limit for such motion nor a requirement that the movant show excusable default or a meritorious defense. Ordinarily, a traverse hearing would be ordered because granting the motion to vacate without a hearing is reversible error. Garvey v Global Asset, supra. Such a hearing will not be necessary here because aside from the issue of defective service, the judgment must be vacated because plaintiff failed to demonstrate that it had standing to maintain the action as required by CPLR § 3211(a)(3).

In its complaint, plaintiff acknowledges it was not the original creditor but rather an assignee of the debt from the original creditor. As an assignee of the original creditor, plaintiff was required to submit (1) evidence in admissible form that the original creditor had assigned its interest in the debt to plaintiff (see Unifund CCR Partners v Youngman, 89 A.D.3d 1377 [4^th Dept. 2011], Iv denied 19 N.Y.3d 1267 [2012]) and (2) non-hearsay evidence substantiating the underlying claim (CPLR §3215 [g] Since no such proof has been presented, jurisdiction over defendant was not obtained, and the complaint must be dismissed pursuant to CPLR §3211(8). Davis v Total Identity Corp, 50 A.D.3d 1484 (4th Dept. 2008), MRC Receivables v Taylor, 57 A.D.3d 1000 (2d Dept. 2008).

Based upon the foregoing, the motion to vacate the judgment entered in this Court on February 8,2011 in the amount of $1,1636.68 judgment is hereby GRANTED. Any wage executions and enforcement proceedings are to be halted immediately, and all funds obtained by or on behalf of plaintiff by virtue of the enforcement proceedings are to be returned to defendant.

This decision constitutes the order of the Court and no other or further order of the Court is required.