FILED: NEW YORK COUNTY CLERK 10/03/ :49 PM INDEX NO /2015 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/03/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X NATIONAL COLLEGIATE STUDENT LOAN TRUST , Index No.: /2015 Plaintiff, ATTORNEY AFFIRMATION IN SUPPORT OF MOTION TO DISMISS COMPLAINT Against ANGELINA VIVEROS, Defendant X State New York ) County New York) 1, JEROME LEE, ESQ., hereby affirm under penalty law l. I am attorney for the within defendant. As such, I am fully familiar with the facts underlying the instant Motion for Summary Judgment brought on by Order to Show Cause, by direction this Court, to dismiss this action because: a) it was initiated beyond the applicable statute limitations; b) because the plaintiff, not an original creditor, never had a contractual standing relationship in the first instance; with defendant and, therefore, lacks c) plaintiff cannot establish a prima facie case based upon account 1 27

2 stated, the Second Cause Acton raised in the complaint, and, because, d) there was never any agreement between the within parties. 2. I make this affirmation in support defendant's motion for a Decision & Order dismissing the Complaint, together with such other and further relief as the Court deems just and proper under the circumstances this action. 3. I am fully familiar with the facts set forth herein except those made upon information and belief. And with respect to those statements fact based upon information and belief, I base my statements on my knowledge New York law, discussions had with my client, as well as my review the documentation provided to me by the plaintiff in response to defense discovery requests previously served. 4. Attached herein as Exhibit A is copy the Summons & Compleint with the applicable confirmation sheet from the New York State NYSEF System showing the date that this action was started by the issuance the index number now assigned to this action. That date filing was January 9, Exhibit B is a copy defendant's Amended Answer wherein the statute limitations, lack standing, failure to state a claim for account stated, statute frauds, as well as the plain old non-existence a contractual relationship were timely raised as affirmative defenses

3 6. For the Court' convenience, Exhibit C is a copy the boilerplate verbiage the "agreement" between the defendant and the original creditor, which documentation was not only authored by original creditor Bank America, it is referenced by the plaintiff in its verified discovery responses, and included herein as Pages "E8" through Page "E11" Exhibit E, as explained and described more fully below. 7. In fact, this is the only document that the plaintiff has to prove, and prfer to the Court, to establish the contractual basis its claim. And, indeed, it is plaintiff who claims that aid documentation evidences the contractual relationship between the defendant and the original creditor. 8. As the Court can see by even a cursory examination this Exhibit C, produced as a discovery response by plaintiff National Collegiate Student Loan Trust and, apparently, obtained directly from original creditor Bank America, NA, the agreement purports to set forth California Law as the applicable law in this action. 9. And attached as Exhibit D is a true and accurate copy a 5-Page document called "Loan Payment History Report", dated " , prepared by plaintiff prior to the intimation this action, produced by plaintiff's counsel in response to defense discovery requests, and, purportedly, itemizing the various payments supposedly made against the account in question by the defendant over a period

4 years. 10. As the Court will note, in the second column this document [highlighted in yellow for the Court's convenience] there is an unmistakable notation from plaintiff indicating that the last payment on the account was on July 19, 2010, a date consistent with the Affidavit Account & Verification" the plaintiff (See, e.g., Exhibit E below), which plaintiff affidavit not only verifies the accuracy the discovery responses, but again reiterates indicates that July 19, 2010 was the last payment date,, which date is clearly more than four years prior to the date that this action was initiated, and, therefore, a date which spells the death knell for this action itself, as will be discussed below. 11.Again, all these documents, comprising Exhibits C & D, were provided to me by plaintiff's counsel as documents responsive to various discovery requests previously propounded by the defense. 12.Finally, attached as Exhibit E, as mentioned in the immediately previously paragraph,_is a true and accurate copy what plaintiff's counsel describes as its "client's verification" the aforementioned discovery responses but which is, in addition, a written admission against interests that, in effect, confirms the fact that the plaintiff has no case and that this action should now be dismissed with costs to abide the event

5 13.Said document (Exhibit E), dated January 12, 2018, is comprised a cover letter from plaintiff's counsel explaining the attached document, and the aforementioned "Affidavit Account & Verification", which attached document is in fact a very precise rendition the facts, under oath, the supposed prima face facts that the plaintiff prfers to establish its entitlement to a recovery the outstanding loan proceeds from defendant. 14.And, in fact, as the Court can see, Exhibit E is a rather succinct telling the tale in this case from the plaintiff's perspective, in a sworn affidavit form, proclaiming, course, that the defendant is in default and illuminating facts presumptively in plaintiff's favor to prove the contract and the default. 15.Such rendition, by a Mr. James Cummins, on plaintiff's behalf, includes but is not limited to a statement amounts due as well as, purportedly, the arithmetical basis plaintiff's claim, setting forth the amounts the various payments made by the defendant and, most pertinent here, describing the date the last payment as July 19, 2010, which is, as previously stated, a date is consistent with the "Last date payment" listed on Exhibit D, which is, again, the purported Loan Payment History Report, dated June " ", and provided to me by plaintiff's counsel as part plaintiffs discovery responses

6 16.Now, all these documents, taken as a whole, including the summons and complaint, the Amended Answer and the various docents that the plaintiff has provided in response to the defense discovery requests, as well as the plaintiff's Account Affidavit & Verification, attached here as Exhibit E, and all provided by the plaintiff as discovery responses during the course this litigation, makes it obvious that the Plaintiff has no discernable case and, instead, demonstrates facts supportive the instant motion to dismiss the action. 17.Plaintiff has no case based upon contract between the parties because there was, in fact, never a contract between defendant and plaintiff NATIONAL COLLEGIATE STUDENT LOAN TRUST and defendant VIVEROS. And, as a matter fact, there is no proven contract between the defendant and the original creditor either. 18. So, in short, plaintiff minimally needs to prove "standing" in order to defeat the defense raised in defendant's Answer regarding plaintiff's lack there. And, "[to establish such standing, plaintiff is required to submit evidence in admissible form establishing that Bank America assigned its interest in defendant's debt to plaintiff". Unifund CCR Partners vs Youngman, 89 AD 3d 1377, (4 Dept., 2011), See, also, Palisades Collections, LLC vs Kedik, 67 AD3d 1329 (4 Dept., 2009). 19.In any event, whether or not there was an agreement entered into between this

7 defendant and the original creditor, this particular plaintiff has no standing to bring this action. 20.Yet, despite having no lawful claim whatsoever which is not based upon utter hearsay and conjecture, and despite the claim being barred, in the first instance, by the applicable statute limitations, and despite having no standing whatsoever to bring this action in the first instance, and despite having no way, as a debt buyer, to establish an account stated claim, Plaintiff has nevertheless proceeded to allege the following two baseless causes action against the defendant: BREACH OF CONTRACT and ACCOUNT STATED. STATUE OF LIMITS VIOLATION 21. First and foremost, I ask this Court to note that plaintiff initiated this action well beyond the applicable Statute Limitations, which according to the Plaintiff's own evidence, is the four years' statute provided for by the law the State Califomia. 22. In fact, the only writing that the plaintiff has prfered in support this action, under oath, is the verified response it has made to defendant's request for discovery responses

8 23. And a copy what plaintiff alleges is the "agreement" which establishes defendant's liability, is attached here as Exhibit C and was provided in response to defense discovery requests, [attached here as part Exhibit El. 24. And that "agreement" states quite explicitly, in all caps in Paragraph L on Page "E10", [Pagination added by the undersigned for the Court's convenience.] that, "...THE PROVISIONS OF THIS CREDIT AGREEMENT WILL BE GOVERNED BY FEDRAL LAW AND THE LAWS OF THE STATE OF CALIFORNIA..." 25. This lawsuit has been started after the expiration the applicable statute limitations, which, in this case, is that the State California, according to the very agreement that plaintiff supposedly relies on to prosecute this lawsuit. 26. In fact, under California law, the statute limits for a claim based upon breach contract, [Plaintiff's 1" Cause Action] is four years and not six years as it is under New York law, which means that Plaintiff is apparently under the mistaken impression that because this action was started within the six years proved for by New York State law, it is timely. 27. Moreover, "[when a nonresident, [such as the Bank America, NA or its assignee] sues on a cause action accruing outside New York, CPLR 202 requires the cause action to be timely under the limitation periods both New York and the jurisdiction, in this case California, where the cause action accrued. See, e.g.,

9 Portfolio Recovery Associates, LLC v. King, 14 N.Y.3d 410, And if the claimed injury is an economic one, as it is here, the cause action typically accrues where the plaintiff resides and sustains the economic impact the loss" (Portfolio Recovery Assoc, LLC v. King, supra. And a debt buyer such as plaintiff is afforded the statute limitations the original creditor's claim (Id.) 29. Possibly, then, this is a case in which plaintiff simply did not actually read the provisions the very agreement it's assignor executed. Or, more ominously, plaintiff's representatives did in fact read the applicable provisions the "agreement" and decided to initiate the lawsuit anyway, hoping against hope, one would assume, that defendant might waive her entitlement to be sued within the applicable statute limitations. 30.1n fact, I now respectfully ask this Court to take judicial notice ' the relevant Califomia statute limitations as follows: "CHAPTER 3. The Time Recovery Real Property [335 Commencing Actions Other Than for the ] (Chapter 3 enacted 1872.) 337. Within four years: l. An action upon any contract, obligation or liability founded upon an instrument in writing... ' See,e.g., Chasalow v. Board Assessors, 176 A.D.2d 800, 804, 575 N.Y.S.2d 129, 133 (2d Dep't 1991) ("Supreme Court." alia, matters public record... ha[s] broad discretion to take judicial notice, inter

10 2. An action to recover (1) upon a book account whether consisting one or more entries; (2) upon an account stated based upon an account in writing, but the acknowledgment the account stated need not be in writing; (3) a balance due upon a mutual, open and current account, the items which are in writing; provided, however, that where an account stated is based upon an account one item, the time shall begin to run from the date said item, and where an account stated is based upon an account more than one item, the time shall begin to run from the date the last item." 31. According to plaintiff itself, the last payment was made on the account in question on July 19, 2010, on which date "a payment $90.51 or $ was made", depending on which page Exhibit D, is more accurate. (See, e.g., Exhibit D Column 2, "The Last payment was made on " ") (See, also, Exhibit E the plaintiff's "Affidavit Account & Verification" at Page "E4", Paragraph "10", where it states: "No payment has been made since July 29, 2010") 32.With the purchase an Index Number, and the filing a summons, this lawsuit was started on January 9, 2015 with the New York State Court System [See, e.g., Exhibit A, Page "3"], a date which is more than four years after the last payment and, therefore, in violation the statute limits applicable in this case and, consequently, time barred, a defense raised saliently in defendant's Answer and Amended Answer. (See, e.g., Exhibit B: Amended Answer)

11 II PLAINTIFF LACKS STANDING 33. A lack standing is fatal to any plaintiff's case, especially one initiated by a third-party debt buyer suing a New York City resident. 34. In breach contract cases such as this one, a garden variety personal loan matter, the Court must look at whether the Plaintiff is the original creditor or if, instead, the delinquent account is alleged to have been assigned to the Plaintiff. If it is claimed, as here, that the account has been assigned, as is alleged here, [See, e.g., Exhibit A, the Complaint at Para. "3"] the Court must then look at whether the Plaintiff actually has standing to sue Here, plaintiff cannot, and course does not even attempt to establish a contractual relationship between itself and the defendant, admitting in its pleading, [Exhibit Al, that its only studding in this matter is indeed as an assignee. Additionally, the Court must determine if Defendant received notice the assignment and Court." whether pro the assignment has been submitted to the See, e.g. Cache, LLC V. Slims, 28 Misc. 3d 1230(A) (City Ct. Auburn, 2010) and Chase Bank USA v. Cardello, 27 Misc. 3d 79 [Civ Ct. Richmond County, 2010]

12 36. Indeed, legal standing is one the following four necessary elements a prima facie cause an action for breach credit contract are: (1) a showing that the defendant entered into credit agreement; (2) a showing that an amount is due and owing from such agreement; (3) a showiñg that the right to collect an amount due and owing was an assigned to plaintiff, and, finally, (4) an affidavit by an individual with personal knowledge supporting each document must be included. See, Citibank (South Dakota), N.A. v. Martin, 807 NY S3d 284 [Civ Ct, New York County, 2005]). 37. Moreover, it is well established that assignees claims are subject to "special pro" requirements in terms demonstrating standing. Citibank (South Dakota), N.A. v. Martin, 11 Misc. 3d 219, 807 NYS2d 284 [Civ Ct, New York County 2005]: "As to assigned claims, it is essential that an assignee show its standing, which doctrine embraces several judicially self-imposed limits on the exercise jurisdiction, such as the general prohibition on a litigant's raising another's legal rights." Id., citing to the United States Supreme Court's decision in Allen v. Wright, 468 US 73 [1984]. 38. The Martin court concluded, "A lack standing renders the litigation a nullity, subject to dismissal without prejudice." Id, citing to Pullman Group, LLC v. Prudential Ins. Co. America, 29 AD2d 578 [1" Dept. 203])

13 No Assignment Documents 39. Yet, plaintiff has presented exactly zero documents purporting to show that it indeed has standing to bring this action as an assignee the original creditor, which is, apparently, Bank America, NA, a California based national banking concern. 40. The presentation zero documents to support its claim to be the assignee the original creditor means that its admissible evidence to support this claim is, by definition, completely insufficient to prove standing on behalf the plaintiff. 41. Therefore, under these circumstances where, the plaintiff is not the original creditor, authenticated assignment documents, and pro title documents with respect to the underlying debt, are essential to proving the assignment claimed by plaintiff, without which this assignee plaintiff has no standing to bring this action in the first instance. 42. However, the problem for this plaintiff in establishing its status to maintain this action is the fact that it has no "assignment" documents whatsoever showing that this particular defendant's account was lawfully transferred to its ownership without recourse, such that it is authorized to bring this action against defendant

14 43. Certainly, no such documentation was ever provided in response to defense discovery requests nor in response to Conferences Orders entered by this Court over the course this litigation and, if any such documents are manufactured now, at this late date, to avoid the dismissal ova this action must be precluded, plaintiff having filed its Note Issue long, long ago, and at the conclusion discovery. 44. And the general assignment accounts, as alluded to in Paragraph "1 1" Mr. Cummins' Affidavit Account and Verification (Exhibit E) will not satisfy this standard because it does not establish that defendant's particular account was included in the assignment referred to in the plaintiff's Affidavit Account & Verification. See, e.g., MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148(A) [Civ. Ct, Richmond County, 2007]. 45. Indeed, a valid assignment "must contain clear evidence the intent to transfer the person's rights, and the subject matter the assignment must be described sufficiently to make it capable being readily identified. To be effective, the assignment must be clear and unequivocal, and must be noticed to the obligor." MNBA American Bank NA US. Nelson, supra. 46. Here, the Affidavit Account and Verification submitted by Plaintiff in response to defendant's discovery requests does not establish the assignment a particular account and, in any event, is nothing more than rank hearsay

15 with respect to how this particular account wound up in the hands this plaintiff. 47 Indeed, I ask the Court to take notice the fact that Mr. Cummins is not even employed by the plaintiff or original creditor Bank America. Rather, and inexplicably, he is employed by yet another entity called Transworld Systems, Inc., as Mr. Cummins points out in the very first paragraph his Account Account & Verification. 48 Note, that he then goes on to claim that his employer, this unknown entity called Transworld Systems, Inc., is the "sub-servicer for plaintiff by US Bank National A_ssociation. the Sub-Servicer Plaintiff'. See, Exhibit E, Page "E2", Mr. Cummins' affidavit, at Paragraph "2". 49 He goes on to claim the loan in question was sold by the Bank America to an entity known as National Collegiate Funding, LLC and then sold thereafter to this plaintiff, while not explaining how he knows all this, can document any this, or has personal knowledge the records kept by any the entities he names. 50 So, as far as Mr. Cummins is concerned, defendant got a loan from Bank America, NA, Transworld Systems Inc., is serving it, a wholly different entity but similarly named like to this plaintiff and known as National Collegiate

16 Funding LLC then got the loan, and, finally the loan was allegedly "transferred, sold and assigned" to this plaintiff, who then started this action in violation the application statute limitations, an unassailable fact admitted to by Mr. Cummins in his Affidavit In any event, Mr. Cummins is indeed involved in this adventure but, curiously, he is not employed by the instant plaintiff, the original creditor, not employed by the first debt buyer, National Collegiate Funding, LLC and not even employed by the within plaintiff and, consequently, has, by definition, no personal knowledge about anything he is testifying to in his Affidavit. 52. Above and beyond the fact that this gibberish info provide by Mr. Cummins appears utterly irrelevant to this action, it also fatally fails to establish, by nonhearsay admissible evidence, pro plaintiff's authority to bring this action. 53. In other words, Mr. Cummins Affidavit Account & Verification, as well crafted as it is, fails to establish the assignment, the chain title or the basic authority plaintiff to initiate this this action in the first instance. 54. As stated by the court in Midland Funding LLC v. Loreto, 34 Misc. 3d 1232(A) [Civ Ct, Richard Country 2012] with regard to the necessity adequate assignment documents in a similar scenario:

17 "These documents cannot be accepted to establish the assignment the defendant's account to be plaintiff. Neither the Bill Sale and Assignment nor the Asset Schedule specifically refers to the defendant's account. Further, there is no a f fidavit from s... with personal knowled ge the account o f verifv as to the accuracy this in form±1 55. In short, then, the utter lack assignment documentation proving that this account in particular was lawfully assigned to plaintiff, and plaintiff's cursory and confusing account how this account wound up in the hands this plaintiff, as described in Mr. Cummins in his Affidavit Account & Verification, is simply legally insufficient to establish the proper assignment the account in question and could not be the basis a judgment whether on default, by motion, on inquest, or at trial. And, thus, this action must be dismissed inasmuch as plaintiff cannot lawfully establish is right to bring this action in the first instance. No Notice Assignment 56. New York State Courts also institute the policy requiring that debtors be given notice assignments because the courts so frequently come across instances where a defendant is sued by multiple creditors on the same debt. Candela, Id., and where standing is lacking, the case must be dismissed. FIA Card Services v. Lorenzo, 22 Misc. 3d 1127A, 881 NYS 2d 363 District Court, 1" District, Nassau, 2009)

18 57. There is no indication whatsoever in this case that the defendant was in fact given notice an assignment any claim against them to the within plaintiff. III NO PROFF OF AN ACCOUNT STATED CLAIM 58. The 5-page hearsay-filled boiler-late affidavit Plaintiff, submitted by Mr. James Cummins, identifying himself as "an employee Transworld Systems, Inc. ", (Attached here as Exhibit E) fails to identify "evidence" in support the plaintiff's "account stated" claim, as set forth in its Second Cause Action. 59. In fact, Plaintiff has failed to produce, and presumably cannot produce, a list the charges and payments defendant's account with the original creditor from day one through the day default and has failed to authenticate the limited hearsay documents it has provided in response to defendant's discovery requests. 60. And if it is unable to produce an itemization the charges and credits, plaintiff simply cannot sustain its claim for "account stated" ³ with respect to any See, e.g., the general definition a "book account" on which an account stated claim is based from the perspective a litigant making such a claim: "A detailed statement, kept in writing in a book, in the nature debits and credits between persons, arising out contract or some tiduciary relation; an account or record debit and credit kept in a book." Taylor v. Horst,

19 portion the debt not supported by a corresponding charge that can be shown to this Court. 61. Indeed, Mr. Cummins does not even make a halfhearted attempt to lay a proper foundation for the introduction these documents under any exception to the rule against the use hearsay to support an account stated claim. 62. As an example, he cannot describe from personal knowledge how such statements account were made in the regular course BANK OF AMERICA's business, whether it was in the regular course the Bank's business to make the entries on these accounting statements, that such entries were made by BANK OF AMERICA employees contemporaneously with the events they memorialize or within a reasonable time thereafter. 63. Because the defects in Mr. Cummins' Affidavit Account & Verification, the "account stated" claim set forth in plaintiff's Second Cause Acton is completely without basis, which means that Plaintiff has not, and cannot, establish its prima facie account stated claim and that, therefore, this claim must be dismissed on this motion. 52 Minn. 300, 54 N. W. 734; Stieglitz v. Mercantile Co., 76 Mo. App. 2S0; Kennedv v. Ankrim. PR (Ohio)

20 64. In short, plaintiff National Collegiate Trust, simply cannot sustain, on its own account so to speak, an account stated claim because it would necessarily be, by definition, based on the books and records the original creditor, which is Bank America. No Pro Mailing 65. For example, in New York State, a Plaintiff making an account stated claim is required to either submit pro mailing the account, or advance alternate pro showing the account was received. See, e.g., FIA (South Dakota), N.A. v. Martin, 1 1 Misc. 3d 219 [Civ Ct, New York County 2005]. 66. Plaintiff's affiant, (See, e.g., Exhibit E), does not even bother to claim in his "Affidavit & Account Verification" that statements were mailed to defendant or provide any testimony whatsoever regarding the accounting process that was in place at the original creditor's place business to ensure the accuracy the accounts, the correctness the mailing address, the proper crediting payments, the proper calculation interest, etc. 67. In fact, I respectfully direct this Court's attention to Paragraph "8" Mr. Cummins' Affidavit & Verification Account, the single paragraph his Affidavit wherein he makes and allegation, albeit facially false, a contractual

21 relationship between the within parties that would lead to an "account stated "claim because, clearly, without an underlying contractual relationship, no account stated claim can possibly arise in the first instance. 68. The clumsy attempt to establish an account stated claim the Second Cause Action the Plaintiff is as follows: "This lawsuit concerns an unpaid loan owed to Defendant Angelina Viveros to Plaintiff. Specifically, Defendant entered into an educational loan agreement instance." at defendant's 69. This single paragraph, succinctly summarized above, constitutes the entire "factual" basis plaintiff's claim for an "account stated" claim. Yet, this single statement, set forth by Mr. Cummins in his Affidavit Account Verification utterly fails to establish the Second Cause Action and suffers from the fact that it is wholly conclusory, not based on personal knowledge and constitutes excludable hearsay. 70. First and foremost, these statements do not reflect the truth because there was never a contractual relationship between the within parties. And, no loan proceeds were ever paid over to this defendant by this plaintiff, which means that the statements set forth in plaintiff's "A_ffidavit & Account Verification" are wholly inadequate, to put it charitably, to establish an account stated claim

22 71. Moreover, there is no description what original documentation Mr. Cummins reviewed, if any, from the original creditor before preparing his Affidavit. And there is no reference whatsoever to Mr. Cummins having reviewed any documentation either his company, the plaintiff, the first debt buyer he references in his Affidavit or original creditor BANK OF AMERICA, NA. 72. Nor does Mr. Cummins specify what "account statements" were sent to defendant, when they were sent, by whom and to what address. 73. And if the plaintiff is to prove an account stated claim, it must establish information's which is obviously not in plaintiff's purview or possession, including showing that that (1) the prfered documents were made in the regular course business; (2) it was in the regular course that business to make the documents; and (3) they were made contemporaneously with, or a reasonable time after, the acts, transactions, occurrences, or events recorded. C.P.L.R. 4518(a); See Rushmore Recoveries X, LLC v. Skolnick, Index No /05, 2007 N.Y. Misc. LEXIS 3731, at *6 (Dist. Ct. Nassau County May 24, 2007) (citing cases). 74. Furthermore, if any the statements that plaintiff fers were stored electronically and/or retrieved from electronic storage, Plaintiff must also establish that the prfered documents "[are] a true and accurate representation" the electronic record, and provide sufficient information to enable the Court to

23 consider "the method or manner by which the electronic record was stored, maintained or retrieved." C.P.L.R. 4518(a). 75. Other elements an account stated action include the lack protest and the failure to pay. Citibank (South Dakota), N.A. v. Martin, 11 Misc. 3d 219 [Civ Ct, New York County, 2005]. Yet, plaintiff's affiant has not provided any pro either these additional elements because he does not even address these issues and obviously has no personal knowledge on which to base his affect in any event. No Contract Means No Account Stated Claim 76. An account stated claim in New York State cannot exist independently an express agreement because it "cannot be used to create liability where none otherwise exits." JP Morgan Chase Bank, N.A. v. Rabel, 27 Misc. 3d 66 [Civ Ct, Kings County 2010]. 77. Without admissible pro an agreement between the individual defendant and the original creditor, plaintiff's account stated claim fails as against the individual defendant

24 78. Insar as the plaintiff fails to present prima facie evidence a contractual relationship between itself and defendant, Plaintiff cannot, by definition, prove its breach contract claim. 79. And, therefore, the additional questions whether the account actually became stated, or whether the defendant accepted the terms as mailed, received and retained them without objection for a reasonable period can't even be reached by the Court. 80. Indeed, Mr. Cummins does not even make a halfhearted attempt to lay a proper foundation for the introduction these statements under any exception to the rule against the use hearsay. 81. Plaintiff has not, and cannot, establish its prima facie account stated claim and is, therefore, its Second Cause Action must be dismissed

25 IV THERE IS NO PROOF OF ANY AGREEMENT 82. According to the defendant, she has never had a contractual relationship with this plaintiff, and never received a notification that a debt hers was assigned to this plaintiff, a debt buyer Consequently, defendant contends that Plaintiff has insufficient pro to sustain its contractual claims overall and certainly insufficient pro to show that defendant owes any debt to plaintiff based on a contractual relationship. 84. Nevertheless, plaintiff's First Cause Action is based upon breach contract, albeit it has failed to provide a copy the agreement between the parties and, in particular, a written document that would render the defendant liable on any basis to this plaintiff. 85. Nor has Plaintiff provided a copy any signed agreement defendant allegedly entered with plaintiff's predecessor in interest. If an account has been assigned, the court must determine if defendant received notice the assignment. CACH, LLC v. Sliss, 2010 NY Slip Op (U). As set forth in Chase Bank USA v. Cardello, 27 Misc. 3d 79 [Civ Ct. Richmond County, 2010], New York Civil Courts institute the policy requiring that debtors be given notice assignments because the courts so frequently come across instances where a defendant is used by multiple creditors on the same debt

26 86. The plaintiff's Affidavit Account & Verification is replete with unmitigated heresy, with unfounded statements and incredulous statements regarding defendant's supposed contractual relationship with this very plaintiff as opposed to the original creditor, as well as unauthenticated claims defendant's default, none which claims is based upon personal knowledge the affiant James Cummins In fact, Mr. Cummins, plaintiff's affiant, is not even employed by original creditor affidavit or even the within plaintiff. And plaintiff has produced absolutely no admissible evidence any kind regarding a contract between this plaintiff and defendant. 88. Therefore, Plaintiff cannot sustain its breach contract action, thereby eliminating, on yet another basis, the First Cause Action in its complaint, which, in a confused and nearly unintelligible way, appears to allege a "breach contract". The plaintiff in American Express FSB v. Dalbis, 2011 NY Slip Op 5036(U) [Civ Ct, Richmond County 201 l] could not sustain its case because it failed to establish, by someone with personal knowledge the history the defendant's account, when the agreement went into effect, when the terms were allegedly communicated to the defendant, and when any the alleged charges were incurred. Plaintiff's claim against the defendant here fails for the same reasons

27 WHEREFORE, defendant respectfully requests that defendant's motion to dismiss the complaint be granted, and for such other and further relief that this court may deem just and proper. Dated: New York, New York September 27, 2018 Jerome Lee