Enacts the "consumer credit fairness act"; establishes a 3 year statute of limitations for commencement of a cause of action arising out of a consumer credit transaction where the defendant is a purchaser, borrower or debtor; establishes a notice of lawsuit which must be mailed to the defendant in such a cause of action; establishes certain requirements for the complaint in such an action; provides for arbitration of such actions; requires debt collectors to send consumers a written notice of their rights under state law along with their initial debt collection correspondence; such notice would contain information such as who and when a principal creditor may contact a debtor about the debt owed as well as the fact that a principal creditor cannot disclose information affecting a consumer debtor's reputation for creditworthiness if the principal creditor knows or has reason to know such information is false; applies to consumer rather than commercial debts.
STATE OF NEW YORK
________________________________________________________________________
1277--A
2015-2016 Regular Sessions
IN SENATE
January 9, 2015
___________
Introduced by Sen. PERALTA -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary -- recommitted
to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the civil practice law and rules, in relation to consum-
er credit transactions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "consumer credit fairness act".
3 § 2. Subdivision 2 of section 213 of the civil practice law and rules,
4 as amended by chapter 709 of the laws of 1988, is amended to read as
5 follows:
6 2. an action upon a contractual obligation or liability, express or
7 implied, except as provided in section two hundred thirteen-a or two
8 hundred fourteen-f of this article or article [2] two of the uniform
9 commercial code or article [36-B] thirty-six-B of the general business
10 law;
11 § 3. The civil practice law and rules is amended by adding a new
12 section 214-f to read as follows:
13 § 214-f. Certain actions arising out of consumer credit transactions
14 to be commenced within three years. An action arising out of a consumer
15 credit transaction where a purchaser, borrower or debtor is a defendant
16 must be commenced within three years, except as provided in section two
17 hundred thirteen-a of this article or article two of the uniform commer-
18 cial code or article thirty-six-B of the general business law. When the
19 period within which an action may be commenced under this section has
20 expired, the right to collect consumer credit debt is extinguished as
21 well as the remedy.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00386-02-6
S. 1277--A 2
1 For purposes of this section, "the right to collect consumer credit
2 debt" shall mean any attempts by the creditor, third party purchaser, or
3 other authorized third party to collect such debt including, but not
4 limited to, calls, mail or other attempts to collect.
5 § 4. The civil practice law and rules is amended by adding a new
6 section 306-d to read as follows:
7 § 306-d. Additional mailing of notice in an action arising out of a
8 consumer credit transaction. 1. At the time of filing with the clerk of
9 the proof of service of the summons and complaint in an action arising
10 out of a consumer credit transaction, the plaintiff shall submit to the
11 clerk a stamped envelope addressed to the defendant together with a
12 written notice in clear type of no less than twelve-point in size, in
13 both English and Spanish, and containing the following language:
14 NOTICE OF LAWSUIT
15 (DATE)
16 (NAME OF COURT)
17 (COUNTY)
18 (STREET ADDRESS, ROOM NUMBER)
19 (CITY, STATE, ZIP CODE)
20 (NAME OF DEFENDANT)
21 (ADDRESS OF DEFENDANT)
22 Plaintiff:__________________________________
23 Defendant:__________________________________
24 Name of original creditor, unless same:______________________________
25 Index number:_______________________________
26 Attention: a lawsuit has been filed against you claiming that you owe
27 money for an unpaid credit card, medical, student loan or other debt.
28 You should go to the court clerk's office at the above address as soon
29 as possible to respond to the lawsuit. You may wish to contact an attor-
30 ney. If you do not have an attorney, help is available at the court.
31 If you do not respond to the lawsuit, the court may enter a judgment
32 against you. Once entered, a judgment is good and can be used against
33 you for twenty years, and your money, including a portion of your
34 paycheck and/or bank account, may be taken. Also, a judgment will hurt
35 your credit score and can affect your ability to rent a home, find a
36 job, or take out a loan.
37 You CANNOT be arrested or sent to jail for owing a debt.
38 It is important that you go to the court clerk's office listed above and
39 bring this notice with you. Additional information can be found at the
40 court system website at: www.courts.state.ny.us
41 2. The face of the envelope shall be addressed to the defendant at the
42 address at which process was served, and shall contain the defendant's
43 name, address (including apartment number) and zip code. The face of the
44 envelope also shall state the appropriate clerk's office as its return
45 address.
46 3. The clerk promptly shall mail to the defendant the envelope
47 containing the additional notice set forth in subdivision one of this
48 section. No default judgment based on the defendant's failure to answer
49 shall be entered unless there has been compliance with this section, and
50 at least twenty days have elapsed from the date of mailing by the clerk.
51 § 5. Subdivision (a) of section 3012 of the civil practice law and
52 rules is amended to read as follows:
S. 1277--A 3
1 (a) Service of pleadings. The complaint may be served with the
2 summons, except that in an action arising out of a consumer credit tran-
3 saction, the complaint shall be served with the summons. A subsequent
4 pleading asserting new or additional claims for relief shall be served
5 upon a party who has not appeared in the manner provided for service of
6 a summons. In any other case, a pleading shall be served in the manner
7 provided for service of papers generally. Service of an answer or reply
8 shall be made within twenty days after service of the pleading to which
9 it responds.
10 § 6. Rule 3016 of the civil practice law and rules is amended by
11 adding a new subdivision (j) to read as follows:
12 (j) Consumer credit transactions. In an action arising out of a
13 consumer credit transaction where a purchaser, borrower or debtor is a
14 defendant, the contract or other written instrument on which the action
15 is based shall be attached to the complaint and the following informa-
16 tion shall be set forth in the complaint:
17 1. The name of the original creditor;
18 2. The last four digits of the original account number;
19 3. The date and amount of the last payment;
20 4. If the complaint contains a cause of action based on an account
21 stated, the date that the final statement of account was mailed to the
22 defendant;
23 5. An itemization of the amount sought, by (i) principal; (ii) finance
24 charge or charges; (iii) fees imposed by the original creditor; (iv)
25 collection costs; (v) attorney's fees; (vi) interest; and (vii) any
26 other fees and charges. The term "finance charge" means a finance charge
27 as defined in Regulation Z, 12 C.F.R. § 226.4.
28 6. Whether the plaintiff is the original creditor. If the plaintiff is
29 not the original creditor, the complaint shall state (i) the date on
30 which the debt was assigned to the plaintiff; and (ii) the name of each
31 previous owner of the account and the date on which the debt was
32 assigned to that owner.
33 7. Any matters required to be stated with particularity pursuant to
34 rule three thousand fifteen of this article.
35 § 7. Subdivision (e) of rule 3211 of the civil practice law and rules,
36 as amended by chapter 616 of the laws of 2005, is amended to read as
37 follows:
38 (e) Number, time and waiver of objections; motion to plead over. At
39 any time before service of the responsive pleading is required, a party
40 may move on one or more of the grounds set forth in subdivision (a) of
41 this section, and no more than one such motion shall be permitted. Any
42 objection or defense based upon a ground set forth in paragraphs one,
43 three, four, five and six of subdivision (a) of this section is waived
44 unless raised either by such motion or in the responsive pleading. A
45 motion based upon a ground specified in paragraph two, seven or ten of
46 subdivision (a) of this section may be made at any subsequent time or in
47 a later pleading, if one is permitted; in any action other than an
48 action arising out of a consumer credit transaction where a purchaser,
49 borrower or debtor is a defendant, an objection that the summons and
50 complaint, summons with notice, or notice of petition and petition was
51 not properly served is waived if, having raised such an objection in a
52 pleading, the objecting party does not move for judgment on that ground
53 within sixty days after serving the pleading, unless the court extends
54 the time upon the ground of undue hardship. The foregoing sentence shall
55 not apply in any proceeding under subdivision one or two of section
56 seven hundred eleven of the real property actions and proceedings law.
S. 1277--A 4
1 The papers in opposition to a motion based on improper service shall
2 contain a copy of the proof of service, whether or not previously filed.
3 An objection based upon a ground specified in paragraph eight or nine of
4 subdivision (a) of this section is waived if a party moves on any of the
5 grounds set forth in subdivision (a) of this section without raising
6 such objection or if, having made no objection under subdivision (a) of
7 this section, he or she does not raise such objection in the responsive
8 pleading.
9 § 8. Subdivision (f) of section 3215 of the civil practice law and
10 rules, as amended by chapter 453 of the laws of 2006, is amended and a
11 new subdivision (j) is added to read as follows:
12 (f) Proof. On any application for judgment by default, the applicant
13 shall file proof of service of the summons and the complaint, or a
14 summons and notice served pursuant to subdivision (b) of rule 305 or
15 subdivision (a) of rule 316 of this chapter, and proof of the facts
16 constituting the claim, the default and the amount due by affidavit made
17 by the party, or where the state of New York is the plaintiff, by affi-
18 davit made by an attorney from the office of the attorney general who
19 has or obtains knowledge of such facts through review of state records
20 or otherwise. Where a verified complaint has been served, it may be used
21 as the affidavit of the facts constituting the claim and the amount due;
22 in such case, an affidavit as to the default shall be made by the party
23 or the party's attorney. In an action arising out of a consumer credit
24 transaction, if the plaintiff is not the original creditor, the appli-
25 cant shall include: (i) an affidavit by the original creditor of the
26 facts constituting the debt, the default in payment, the sale or assign-
27 ment of the debt, and the amount due at the time of sale or assignment;
28 (ii) for each subsequent assignment or sale of the debt to another enti-
29 ty, an affidavit of sale of the debt by the debt seller, completed by
30 the seller or assignor; and (iii) an affidavit of a witness of the
31 plaintiff, which includes a chain of title of the debt, completed by the
32 plaintiff or plaintiff's witness. When jurisdiction is based on an
33 attachment of property, the affidavit must state that an order of
34 attachment granted in the action has been levied on the property of the
35 defendant, describe the property and state its value. Proof of mailing
36 the notice required by subdivision (g) of this section, where applica-
37 ble, shall also be filed.
38 (j) Affidavit. A request for a default judgment entered by the clerk,
39 must be accompanied by an affidavit by the debt collector (who may be
40 the plaintiff or plaintiff's attorney) stating that after reasonable
41 inquiry, he or she has reason to believe that the statute of limitations
42 has not expired.
43 § 9. The civil practice law and rules is amended by adding a new
44 section 7515 to read as follows:
45 § 7515. Confirmation of an award based on a consumer credit trans-
46 action. In any proceeding under section seven thousand five hundred ten
47 of this article to confirm an award based on a consumer credit trans-
48 action, the party seeking to confirm the award shall plead the actual
49 terms and conditions of the agreement to arbitrate. The party shall
50 attach to its petition (1) the agreement to arbitrate; (2) the demand
51 for arbitration or notice of intention to arbitrate, with proof of
52 service; and (3) the arbitration award, with proof of service. If the
53 award does not contain a statement of the claims submitted for arbi-
54 tration, of the claims ruled upon by the arbitrator, and of the calcu-
55 lation of figures used by the arbitrator in arriving at the award, then
56 the petition shall contain such a statement. The court shall not grant
S. 1277--A 5
1 confirmation of an award based on a consumer credit transaction unless
2 the party seeking to confirm the award has complied with this section.
3 § 10. This act shall take effect on the first of January next succeed-
4 ing the date on which it shall have become a law, except that section
5 three of this act shall take effect on the one hundred eightieth day
6 after this act shall have become a law.
