New York – Collection Action Lacked Evidence, Judge Noach Dear Finds

    17

    New York – A Brooklyn judge has dismissed a $7,000 collection action because the creditor “did not have even a scintilla of evidence” to present when the case was placed on the Civil Court’s trial calendar.

    Join our WhatsApp group

    Subscribe to our Daily Roundup Email


    Acting Supreme Court Justice Noach Dear rebuffed the creditor’s request for an adjournment because it “seemed to be nothing more than another effort to contact the alleged debtor” after all other means of collecting the debt had failed.

    “The courtroom is a place where the law is followed not skirted for convenience,” he said in LVNV Funding v. Hatzakis, 111517/10.
    The Civil Court Act (CCA) §1301 provides a mandate for the speedy resolution of cases on its dockets by requiring that where “any party appears in person, the clerk shall fix a date for trial not less than five or more than 15 days after joinder of issue,” Justice Dear wrote.

    Arthur Sanders, a partner at Mel S. Harris Associates, which represented LVNV Funding, said its client will appeal because the ruling deprives it of its statutory right to pretrial discovery.

    Mr. Sanders said the passage in the Civil Court Act quoted by Justice Dear applies to situations when there has been a notice of trial.
    A notice of trial, he said, contains a certification of the attorney for the party seeking a trial that discovery has been completed, which did not happen in this case.

    The collection action in LVNV Funding was filed on Dec. 10, 2010, and issue was joined when the debtor, Alicia Hatzakis, who was unrepresented, appeared at the courthouse at 141 Livingston St. on Dec. 30 and filed her answer, Justice Dear wrote. The clerk’s office then put the matter on the Brooklyn court’s “trial ready” calendar for Feb. 7, 2011.

    When both sides appeared on Feb. 7, LVNV requested an adjournment, stating it needed discovery to support its request for an adjournment.
    Justice Dear rejected the request because LVNV “had failed to make any discovery requests, let alone an investigation into its case, from the time issue was joined.”

    The judge asked an attorney representing LVNV for the basis on which the lawsuit had been filed. In his opinion, the judge characterized the lawyer’s answer as based “upon information that was predicated upon multiple layers of hearsay.”

    Further, Justice Dear noted that the court had sent LVNV a notice that was sent to all creditors pursuing collection actions warning that failure to be ready for trial can result in dismissal.

    After the adjournment was denied, Justice Dear dismissed the case because LVNV had “admitted it could not establish its prima facie case and could not assure the court that it would be able to do so on any adjourned date.”

    In the LVNV case, like “so many others,” Justice Dear wrote, a creditor, after starting a lawsuit based on “multiple hearsay” either obtains a default judgment that “would often times not pass muster” under the CPLR or “an in person settlement discussion. Either way the [creditor] stands to gain.”

    Justice Dear refused to take part in that process, which he described as allowing creditors to commandeer the court into “becoming another tool for debt collectors to force contact with alleged debtors for the statutory filing fee.”

    Justice Dear served as a New York City councilman for 18 years until term limits barred him from seeking re-election in 2001. From 2002 until his election to the Civil Court in 2007, he was a commissioner of the Taxi and Limousine Commission.


    Listen to the VINnews podcast on:

    iTunes | Spotify | Google Podcasts | Stitcher | Podbean | Amazon

    Follow VINnews for Breaking News Updates


    Connect with VINnews

    Join our WhatsApp group


    17 Comments
    Most Voted
    Newest Oldest
    Inline Feedbacks
    View all comments
    charliehall
    charliehall
    13 years ago

    Kudos to Judge Dear for this kiddush HaShem.

    ProminantLawyer
    ProminantLawyer
    13 years ago

    these are prominant jurists.

    13 years ago

    All dear is doing is letting debtors get away with owing thousands of dollars. I should have bout that 10 thousand dollar watch, not paid my cc and ended up infront of deer so he can wipe it clean for me. Classic liberals.

    CountryYossi
    CountryYossi
    13 years ago

    Thanks to Noach Dear…Noach is a fair judge and does not tolerate when companies buy off debts for 10cents on a dollar and then they harrass the debtors to death for every penny…He always pushes for a settlement but if you show arrogance and try to grab every penny you better be very prepared or you will get zero from Noach…

    PMOinFL
    PMOinFL
    13 years ago

    I love Judge Dear. However, there is an issue with his “tough of the collectors” attitude. Although I 100% agree with him, too many defendants are going to try to use him to their advantage.

    I you owe money, PAY IT. If you don’t owe money, fight it… and Judge Dear’s courtroom is your best bet. However, if you owe money and are just hoping to get out of it on some kind of technicality (ie. a paperwork mistake), then you are just a dishonest thief.

    I know a couple who are fighting huge judgments against them in the hopes that the paperwork is “lost” so they get out of paying. That is theft. If you borrow money, pay it back. In the case of this couple, I feel bad for their creditors who are out VERY large sums of money as more and more judges are throwing out their cases if even the smallest dot on the most inconsequential ‘i’ is missing.

    ProminantLawyer
    ProminantLawyer
    13 years ago

    there are more debtors (MORE VOTERS) than creditors (LESS VOTERS). you figure it out.

    cbdds
    cbdds
    13 years ago

    The job of the judge is to see if there is clear evidence of the debt. If they can not prove the debt then it should be thrown out. I realize that the missing evidence might be due to lost paperwork and there really is money owed BUT TOUGH.
    The law has to require evidence to protect in a case where the money is really not owed or paid previously.
    I never got credit for “the dog ate my homework” because the teacher never saw my homework.

    BrooklynLawyer
    BrooklynLawyer
    13 years ago

    Populist move on the part of Judge Dear who is a fine person. It does seem wrong on the law and I doubt it will stand up on appeal.

    Michel
    Michel
    13 years ago

    Noach Dear is legally wrong and it will be overturned on appeal. Oftentimes, the paperwork trial is not great, witness whats going with the mortgage mess, but there is no question the person owes the money and is using loopholes to evade it. Courts require original signed documents and in this electronic age, this is difficult. But they can provide copies of original documents with the creditrs signature, thier personal info, copies of the credit card slips, etc. So why isnt this good enough??

    13 years ago

    Based on what fact do people determine that debt collectors are bogus and have no right to collect a debt they are owed. Based on perception? What does it make a difference how many cents on the dollar the debt was bought for? How is that anyones business. Just because they paid 10 cents on the dollar means that a debtor doesn’t have to pay his 3k cc bill? It’s a business. The cc companies are willing to just sell the debt for cents on the dollar so they don’t wanna have to deal with it and people buy it and try to turn a profit. Which seems to be getting criminal on America more and more each day. How bout don’t buy 5k worth of goodies if u can’t pay for it at the end of the month. Like little children.