[*1]
American Express Centurion Bank v Bajek
2010 NY Slip Op 52005(U) [29 Misc 3d 1226(A)]
Decided on November 16, 2010
Supreme Court, Orange County
Cohen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 16, 2010
Supreme Court, Orange County


American Express Centurion Bank, Plaintiff,

against

John Bajek, Defendant.




12799/2008



Andrew J. Dick, Esq.

For the Plaintiff

Zwicker & Associates, PC

150 Allens Creek Road

Rochester, New York 14618

John Bajek

Pro Se

4 Braemer Way

Highland mills, New York 10930

Jeffrey A. Cohen, J.



The following papers numbered 1 to 4 were considered on plaintiff's motion seeking an order granting it summary judgment:

PAPERS NUMBERED

Notice of Motion/Affirmation/Affidavit/Exhibits1-4

Plaintiff commenced this action to recover judgment on a revolving credit agreement (the "Account") by the filing of a summons and verified complaint on December 5, 2008. Defendant submitted an answer and issue was joined.

Plaintiff previously moved for summary judgment, which motion was denied by decision and order dated April 29, 2010, because plaintiff failed to prove that the summary judgment motion was served upon the defendant. Plaintiff now moves again pursuant to CPLR §3212 for an order granting it summary judgment. Defendant does not oppose the motion, although an affirmation of service establishes that he was properly served with a copy of the motion papers on September 18, 2010.

In support of its motion for summary judgment, plaintiff attached an affidavit from Jennifer Hartje, an assistant custodian of records for the plaintiff who is involved in the Plaintiff's collection efforts with regard to defaulted credit card accounts. Hartje avers to having full knowledge of the Account based on her review of the records relating to the Account issued by Plaintiff to Defendant. In support of the application Plaintiff submits, among other documents, a sample revolving credit agreement and transaction histories on the Account ranging from April 23, 2008 though August 29, 2008. Pursuant to the documents submitted in support of the motion, defendant stopped making payments on the Account and thus breached the revolving credit agreement.

Based on the record before the court, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting proof of the underlying credit agreement, and the failure to make payment in accordance with the terms of the credit agreement. See, JPMorgan Chase Bank v. Gamut-Mitchell, Inc., 27 AD3d 622, 811 NYS2d 777 (2nd Dept., 2006). However, the amount plaintiff seeks, $48,839.93 together with interest from August 29, 2008, as set forth in the complaint and the Hartje affidavit is not established from evidence submitted. The most recent credit card statement, dated September 29, 2008 indicates a balance due of $35,524.04.

The submission of a motion on default does not impose upon the Court a ministerial duty to grant the relief requested. A lack of opposition does not deprive the Court of the duty to exercise its inherent discretion or its responsibility to assure that justice is done. "Thus, if proof is absent, insufficient, or untrustworthy; if proper procedure has not been followed, or service not made, or notice not timely given; where a valid cause of action is not stated; or if jurisdiction is absent; the moving party cannot presume entitlement to the requested relief, even on default." Rivera v. Laporte, 120 Misc 2d 733, 735, 466 NYS2d 606 (N.Y.Sup.,1983), citing, Kahn v. Friedlander, 90 AD2d 868, 456 NYS2d 482 (3rd Dept., 1982).

As set forth above, the most recent statement attached to the motion papers establishes a balance of $35,524.04 as of September 29, 2008. No explanation is offered, much less prima facie evidence submitted establishing that the sum of [*2]$48,839.93 was due in August 2008 [FN1]. Accordingly, plaintiff has only established its prima facie entitlement to $35,524.04 as of September 29, 2008 [FN2].

Defendant fails to submit any opposition to plaintiff's prima facie showing and thereby fails to refute Plaintiff's entitlement to judgment as a matter of law or to raise a triable issue of fact in opposition to the motion. Id. Accordingly, plaintiff's motion for summary judgment, only to the extent it seeks the sum of $35,524.04 as of September 29, 2008 is GRANTED.

Plaintiff's application for legal fees is DENIED. While plaintiff's counsel submits that fifteen (15%) percent of the outstanding principal balance is "reasonable, fair and common for these types of cases" (affirmation in support at ¶5), the credit account agreement does not set forth that defendant, the consumer, shall be liable for a percentage of his outstanding balance in the event of a default as and for attorneys fees. Indeed, at most this agreement provides a repayment promise of all attorneys' fees incurred by the plaintiff. The method that counsel describes in his affirmation by which he gets paid is a classic contingency fee based on any amount collected from the defendant/judgment debtor. Therefore no fees are ever incurred by the plaintiff under the situation described here [FN3] until collection of monies from the defendant. [*3]

WHEREFORE, based on the foregoing, it is

ORDERED that the Plaintiffs' motion for summary judgment is partially granted and partially denied.

Plaintiff shall submit a Judgment to the office of the Orange County Clerk for entry in the principal sum of $35,524.04 together with pre-judgment interest at the rate of nine (9%) percent per annum (see, CPLR §5004), from September 29, 2008, together with costs and disbursements.

All other matters raised are DENIED.

The foregoing constitutes the decision and order of this Court.

Dated:Goshen, New York

November 16, 2010

/s/

HON. JEFFREY A. COHEN, J.S.C.



For Court purposes only:Final Disp: Yes

Appearances: No

Number of Motions: 1

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Footnotes


Footnote 1:It seems as if plaintiff seeks to "double dip" its right to interest combining statutory pre-judgment interest and contractual interest without any explanation or argument entitling it to such a windfall.

Footnote 2:Actions to recover sums due on consumer credit cards are common and prolific not unlike actions to foreclose mortgages during these difficult economic times. Indeed, residential mortgage foreclosure filings have so flooded and permeated the Courts in Orange County that as of the date of this decision, no less than 42% of all civil filings in Orange County were foreclosure actions. The volume of documents submitted to the Courts relating to foreclosure actions have caused Judge Lippman, Chief Judge of the New York State Court of Appeals, to voice concerns of "robosigning" and acknowledge the existence of a deeply flawed process in this period of economic crisis. Consumer credit collection matters, such as the one at bar, are woefully similar. This Court has had the opportunity to review and consider at least three (3) affidavits signed by Ms. Hartje in the last year alone in collection matters brought by American Express Centurion Bank. The instant affidavit is prepared in blank in advance of knowing who would sign the affidavit. A rubber stamp is used to insert Ms. Hartje's name. While this process does not automatically indicate any impropriety, it does lead this Court down a path to wonder whether "robosigning" is not occurring with as equal prevalence in consumer credit actions as in foreclosures.

Footnote 3:Even the billing to which counsel avers does not demonstrate the magnitute of attorneys fees sought here. Counsel avers that approximately 3.3 billable hours had been expended at the time of the application and estimates another 6.2 hours in potential billables (including 1.5 hours for a post-judgment examination by deposition of the defendant) on collection. Again, there is no evidence that plaintiff "incurred" any of these fees. However, even when applying counsel's $185 per hour billable rate to the totality of these hours, at most the legal fees incurred would be $1,757.50. Nonetheless, plaintiff has not offered proof adequate to justify these fees under the credit card agreement.