Bill Text: NY A06909 | 2019-2020 | General Assembly | Amended


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 26-1)

Status: (Introduced) 2020-07-23 - amended on third reading 6909e [A06909 Detail]

Download: New_York-2019-A06909-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         6909--E
                                                                Cal. No. 248

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                     March 26, 2019
                                       ___________

        Introduced  by  M.  of  A.  WEINSTEIN,  JAFFEE, COLTON, GALEF, ABINANTI,
          ZEBROWSKI, O'DONNELL, FAHY, PEOPLES-STOKES, L. ROSENTHAL,  M. G. MILL-
          ER, DINOWITZ, SEAWRIGHT, GLICK, WEPRIN, MOSLEY, TAYLOR, BARRON, REYES,
          ORTIZ  --  Multi-Sponsored  by  --  M. of A. CAHILL, COOK, CYMBROWITZ,
          EPSTEIN, GOTTFRIED, McDONOUGH, PERRY -- read once and referred to  the
          Committee  on  Judiciary  -- reported and referred to the Committee on
          Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
          amended  and recommitted to said committee -- reported and referred to
          the Committee on Rules -- Rules Committee  discharged,  bill  amended,
          ordered reprinted as amended and recommitted to the Committee on Rules
          --  ordered to a third reading, amended and ordered reprinted, retain-
          ing its place on the order of third reading -- again amended on  third
          reading,  ordered reprinted, retaining its place on the order of third
          reading -- again amended on third reading, ordered reprinted,  retain-
          ing its place on the order of third reading

        AN  ACT to amend the civil practice law and rules and the judiciary law,
          in relation to consumer 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. Section 105 of the civil practice law and  rules  is  amended  by
     4  adding two new subdivisions (h-1) and (q-1) to read as follows:
     5    (h-1)  Finance  charge.  The  term  "finance charge" means the cost of
     6  consumer credit as a dollar amount, includes any charge payable directly
     7  or indirectly by the consumer and imposed directly or indirectly by  the
     8  creditor  as  an  incident to or a condition of the extension of credit,
     9  and does not include any charge of a type payable in a  comparable  cash
    10  transaction.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00927-17-0

        A. 6909--E                          2

     1    (q-1) Original creditor. The term "original creditor" means the entity
     2  that  owned a consumer credit account at the date of default giving rise
     3  to a cause of action.
     4    § 3. Subdivision 2 of section 213 of the civil practice law and rules,
     5  as  amended  by  chapter  709 of the laws of 1988, is amended to read as
     6  follows:
     7    2. an action upon a contractual obligation or  liability,  express  or
     8  implied,  except  as  provided  in section two hundred thirteen-a or two
     9  hundred fourteen-i of this article or article 2 of the  uniform  commer-
    10  cial code or article 36-B of the general business law;
    11    §  4.  The  civil  practice  law  and rules is amended by adding a new
    12  section 214-i to read as follows:
    13    § 214-i. 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 2 of the  uniform  commer-
    18  cial  code  or article 36-B of the general business law. Notwithstanding
    19  any other provision of  law,  when  the  applicable  limitations  period
    20  expires,  any  subsequent payment toward, written or oral affirmation of
    21  or other activity on the debt does not revive or extend the  limitations
    22  period.
    23    §  5.  The  civil  practice  law  and rules is amended by adding a new
    24  section 306-d to read as follows:
    25    § 306-d. Additional mailing of notice in an action arising  out  of  a
    26  consumer credit transaction. (a) At the time of filing with the clerk of
    27  the  proof  of service of the summons and complaint in an action arising
    28  out of a consumer credit transaction, the plaintiff shall submit to  the
    29  clerk  a  stamped, unsealed envelope addressed to the defendant together
    30  with a written notice in clear type of  no  less  than  twelve-point  in
    31  size,  in  both  English  and  Spanish,  and  containing  the  following
    32  language:
    33                        ADDITIONAL NOTICE OF LAWSUIT

    34  (NAME OF COURT)
    35  (COUNTY)
    36  (STREET ADDRESS, ROOM NUMBER)
    37  (CITY, STATE, ZIP CODE)

    38  (NAME OF DEFENDANT)
    39  (ADDRESS OF DEFENDANT)

    40  Plaintiff:
    41  Defendant:
    42  Name of original creditor, unless same:
    43  Index number:

    44  Attention: a lawsuit has been filed against you claiming  that  you  owe
    45  money for an unpaid consumer debt.
    46  You may wish to contact an attorney.
    47    You  should  respond  to  the lawsuit as soon as possible by filing an
    48  "answer" which may be done at the court clerk's office listed above.
    49    If you do not respond to the lawsuit, the  court  may  enter  a  money
    50  judgment  against  you. Once entered, a judgment is good and can be used
    51  against you for twenty years, and  your  personal  property  and  money,
    52  including  a  portion of your paycheck and/or bank account, may be taken

        A. 6909--E                          3

     1  from you.  Also, a judgment may affect your credit score and can  affect
     2  your ability to rent a home, find a job, or take out a loan.
     3  You CANNOT be arrested or sent to jail for owing a debt.
     4  Additional  information  can be found at the New York state court system
     5  website.
     6  Sources of information and assistance:
     7  The court encourages you to inform yourself  about  your  options  as  a
     8  defendant  in  this  lawsuit.  In  addition to seeking assistance from a
     9  private attorney or legal aid office, there are  free  legal  assistance
    10  computer programs that you can use online to help you represent yourself
    11  in this lawsuit.
    12  For  further information, or to locate a legal aid program near you, you
    13  may visit the LawHelpNY website or  the  New  York  state  court  system
    14  website,  which  has  information for representing yourself and links to
    15  other resources at: ___________________.
    16    (b) The face of the envelope shall be addressed to  the  defendant  at
    17  the  address  at which process was served, and shall contain the defend-
    18  ant's name, address (including apartment number) and zip code. The  face
    19  of  the  envelope also shall state the appropriate clerk's office as its
    20  return address.
    21    (c) The clerk promptly  shall  mail  to  the  defendant  the  envelope
    22  containing  the  additional  notice set forth in subdivision (a) of this
    23  section. No default judgment based on the defendant's failure to  answer
    24  shall be entered unless there has been compliance with this section, and
    25  at least twenty days have elapsed from the date of mailing by the clerk.
    26  No  default judgment based on the defendant's failure to answer shall be
    27  entered if the additional notice is returned to the court as undelivera-
    28  ble. Receipt of the additional notice by the defendant does  not  confer
    29  jurisdiction on the court in the absence of proper service of process.
    30    (d)  The  chief administrative judge shall issue a Spanish translation
    31  of the notice in subdivision (a) of this section and shall maintain  and
    32  publish  the  URL address for the web page containing consumer resources
    33  for unrepresented litigants.
    34    § 6. Subdivision (a) of section 3012 of the  civil  practice  law  and
    35  rules is amended to read as follows:
    36    (a)  Service  of  pleadings.  The  complaint  may  be  served with the
    37  summons, except that in an action arising out of a consumer credit tran-
    38  saction, the complaint shall be served with the  summons.  A  subsequent
    39  pleading  asserting  new or additional claims for relief shall be served
    40  upon a party who has not appeared in the manner provided for service  of
    41  a  summons.  In any other case, a pleading shall be served in the manner
    42  provided for service of papers generally. Service of an answer or  reply
    43  shall  be made within twenty days after service of the pleading to which
    44  it responds.
    45    § 7. Rule 3016 of the civil practice  law  and  rules  is  amended  by
    46  adding a new subdivision (j) to read as follows:
    47    (j)  Consumer  credit  transactions.  In  an  action  arising out of a
    48  consumer credit transaction where a purchaser, borrower or debtor  is  a
    49  defendant,  the contract or other written instrument on which the action
    50  is based shall be attached to the complaint, however, for  the  purposes
    51  of  this  section,  if  the  account was a revolving credit account, the
    52  charge-off statement may be attached to the  complaint  instead  of  the
    53  contract  or  other  written  instrument,  and the following information
    54  shall be set forth in the complaint:
    55    (1) The name of the original creditor;

        A. 6909--E                          4

     1    (2) The last four digits of the account number  printed  on  the  most
     2  recent  monthly statement recording a purchase transaction, last payment
     3  or balance transfer;
     4    (3)  The  date  and  amount  of the last payment or, if no payment was
     5  made, a statement that the purchaser, borrower or debtor made no payment
     6  on the account;
     7    (4) If the complaint contains a cause of action based  on  an  account
     8  stated,  the  date  on or about which the final statement of account was
     9  provided to the defendant;
    10    (5) (A) Except as provided in subparagraph (B) of this  paragraph,  an
    11  itemization  of the amount sought, by (i) principal; (ii) finance charge
    12  or charges; (iii) fees imposed by the original creditor; (iv) collection
    13  costs; (v) attorney's fees; (vi) interest; and (vii) any other fees  and
    14  charges.
    15    (B)  If  the account was a revolving credit account, an itemization of
    16  the amount sought, by:   (i) the total amount of  the  debt  due  as  of
    17  charge-off;  (ii) the total amount of interest accrued since charge-off;
    18  (iii) the total amount of non-interest charges  or  fees  accrued  since
    19  charge-off; and (iv) the total amount of payments and/or credits made on
    20  the debt since charge-off;
    21    (6)  The  account balance printed on the most recent monthly statement
    22  recording a purchase transaction, last payment or balance transfer;
    23    (7) (A) Whether the plaintiff is the original creditor.
    24    (B) If the plaintiff is not the original creditor, the complaint shall
    25  also state (i) the date on which the debt was sold or  assigned  to  the
    26  plaintiff;  (ii) the name of each previous owner of the account from the
    27  original creditor to the plaintiff and the date on which  the  debt  was
    28  assigned to that owner by the original creditor or subsequent owner; and
    29  (iii)  the  amount due at the time of the sale or assignment of the debt
    30  by the original creditor; and
    31    (8) Any matters required to be stated with particularity  pursuant  to
    32  rule 3015 of this article.
    33    § 8. Subdivision (e) of rule 3211 of the civil practice law and rules,
    34  as  amended  by  chapter  616 of the laws of 2005, is amended to read as
    35  follows:
    36    (e) Number, time and waiver of objections; motion to  plead  over.  At
    37  any  time before service of the responsive pleading is required, a party
    38  may move on one or more of the grounds set forth in subdivision  (a)  of
    39  this  rule,  and  no  more  than one such motion shall be permitted. Any
    40  objection or defense based upon a ground set forth  in  paragraphs  one,
    41  three,  four,  five  and  six  of subdivision (a) of this rule is waived
    42  unless raised either by such motion or in  the  responsive  pleading.  A
    43  motion  based  upon a ground specified in paragraph two, seven or ten of
    44  subdivision (a) of this rule may be made at any subsequent time or in  a
    45  later  pleading,  if one is permitted; an objection that the summons and
    46  complaint, summons with notice, or notice of petition and  petition  was
    47  not  properly  served is waived if, having raised such an objection in a
    48  pleading, the objecting party does not move for judgment on that  ground
    49  within  sixty  days after serving the pleading, unless the court extends
    50  the time upon the ground of undue hardship. The foregoing sentence shall
    51  not apply in any proceeding to collect a debt arising out of a  consumer
    52  credit  transaction where a consumer is a defendant or under subdivision
    53  one or two of section seven hundred eleven of the real property  actions
    54  and  proceedings  law.  The  papers  in  opposition to a motion based on
    55  improper service shall contain a copy of the proof of  service,  whether
    56  or  not  previously filed. An objection based upon a ground specified in

        A. 6909--E                          5

     1  paragraph eight or nine of subdivision (a) of this rule is waived  if  a
     2  party  moves  on any of the grounds set forth in subdivision (a) of this
     3  rule without raising such objection or  if,  having  made  no  objection
     4  under  subdivision  (a)  of  this  rule,  he  or she does not raise such
     5  objection in the responsive pleading which, in any action to  collect  a
     6  debt  arising out of a consumer credit transaction where a consumer is a
     7  defendant, includes any amended responsive pleading.
     8    § 9. Rule 3212 of the civil practice  law  and  rules  is  amended  by
     9  adding a new subdivision (j) to read as follows:
    10    (j)  Additional notice in any action to collect a debt arising  out of
    11  a consumer credit transaction where a consumer is a defendant.
    12    1. At the time of service of a notice of motion any  part  of    which
    13  requests  summary  judgment in whole or in part, where the  moving party
    14  is a plaintiff and the respondent is a consumer defendant in  an  action
    15  to  collect  a  debt  arising out of a  consumer credit transaction, and
    16  where the consumer defendant against  whom summary judgment is sought is
    17  not represented by an attorney, the plaintiff shall submit to the  clerk
    18  a  stamped,  unsealed  envelope addressed to the defendant together with
    19  the following additional notice in English and Spanish to be printed  in
    20  clear type no less than twelve-point in size:
    21                              IMPORTANT NOTICE
    22  The  Plaintiff  has  asked  the  Court  to enter judgment against you by
    23  making a Motion for Summary Judgment.  Keep this Notice and the envelope
    24  it came in. The Motion for Summary Judgment  was  separately  served  on
    25  you.  To avoid entry of judgment:
    26  (1) You must appear in court as directed below:
    27  WHERE:  Name of Court, Street Address, Room Number
    28  WHEN:  Date and time
    29  (2) You should oppose the motion IN WRITING.
    30  HOW TO OPPOSE THE MOTION:
    31    (1)  State  the  legal reasons why the court should not enter judgment
    32  against you, including your defenses.
    33    (2) State the facts that support your defenses.
    34    (3) Attach affidavits and/or exhibits to support the facts you assert.
    35    (a) Affidavits are sworn statements of witnesses (including  you)  who
    36  state  facts they know to be true.  The affidavit should state the facts
    37  and how the witness knows them.  Also, the affidavit should explain  any
    38  exhibits.    An affidavit of service is an affidavit that states how and
    39  when papers were served.   An affidavit must be signed  in  front  of  a
    40  notary.  Free  forms  are  available  on the New York State Court system
    41  website at: ____________________.
    42    (b) Exhibits are copies of documents. Exhibits are usually attached to
    43  affidavits.
    44    (4) Have someone (not you or another defendant in the lawsuit) mail  a
    45  copy  of  your  opposition to the plaintiff's attorney before your court
    46  date and have them prepare an affidavit of service by mail.
    47    (5) Bring a copy of your opposition and the affidavit  of  service  to
    48  your court date.
    49    (6) Attend your court date.
    50  IF YOU NEED MORE TIME:
    51  If  you  need  more  time  to  prepare your written response, you should
    52  appear at your court date and ask the judge for more time.  You can also
    53  ask the judge to refer you for legal help.
    54  IF YOU NEED LEGAL HELP:
    55  You may seek legal help from a private attorney or a legal  aid  office.
    56  Some  courts  have  free  legal  assistance  programs for people without

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     1  lawyers.  You can find resources on the  New  York  State  court  system
     2  website at: ____________________.
     3    2.  The  clerk  promptly  shall  mail  to  the  defendant the envelope
     4  containing the additional notice set forth  in  paragraph  one  of  this
     5  subdivision  and  note  the  date of mailing in the case record. Summary
     6  judgment shall not be entered based on defendant's failure to oppose the
     7  motion unless there has been compliance with this section and  at  least
     8  fourteen  days  have  elapsed  from  the date of mailing by the clerk or
     9  nineteen days if the plaintiff's notice  of  motion  demands  additional
    10  time under subdivision (b) of rule 2214 of this chapter.
    11    3. The chief administrative judge shall issue a Spanish translation of
    12  the  notice  in paragraph one of this subdivision and shall maintain and
    13  publish the URL address for the  web  page  containing  consumer  credit
    14  resources for unrepresented litigants.
    15    §  10. Section 3213 of the civil practice law and rules, as amended by
    16  chapter 210 of the laws of 1969, is amended to read as follows:
    17    § 3213. Motion for summary judgment in  lieu  of  complaint.  When  an
    18  action is based upon an instrument for the payment of money only or upon
    19  any  judgment,  the  plaintiff  may  serve  with the summons a notice of
    20  motion for summary judgment and the  supporting  papers  in  lieu  of  a
    21  complaint.  The summons served with such motion papers shall require the
    22  defendant to submit answering papers  on  the  motion  within  the  time
    23  provided  in the notice of motion. The minimum time such motion shall be
    24  noticed to be heard shall be as provided by subdivision (a) of rule  320
    25  for  making  an appearance, depending upon the method of service. If the
    26  plaintiff sets the hearing date of the motion  later  than  the  minimum
    27  time  therefor,  he  may  require  the  defendant to serve a copy of his
    28  answering papers upon him within  such  extended  period  of  time,  not
    29  exceeding  ten days, prior to such hearing date. No default judgment may
    30  be entered pursuant to subdivision (a) of  section  3215  prior  to  the
    31  hearing  date  of  the  motion.  If the motion is denied, the moving and
    32  answering papers shall be deemed the complaint and answer, respectively,
    33  unless the court orders otherwise. The  additional  notice  required  by
    34  subdivision (j) of rule 3212 shall be applicable to a motion made pursu-
    35  ant  to  this  section  in any action to collect a debt arising out of a
    36  consumer credit transaction where a consumer is a defendant.
    37    § 11. Subdivision (f) of section 3215 of the civil  practice  law  and
    38  rules,  as  amended by chapter 453 of the laws of 2006, is amended and a
    39  new subdivision (j) is added to read as follows:
    40    (f) Proof. On any application for judgment by default,  the  applicant
    41  shall  file  proof  of  service  of  the summons and the complaint, or a
    42  summons and notice served pursuant to subdivision (b)  of  rule  305  or
    43  subdivision  (a)  of  rule  316  of this chapter, and proof of the facts
    44  constituting the claim, the default and the amount due by affidavit made
    45  by the party, or where the state of New York is the plaintiff, by  affi-
    46  davit  made  by  an attorney from the office of the attorney general who
    47  has or obtains knowledge of such facts through review of  state  records
    48  or otherwise. Where a verified complaint has been served, it may be used
    49  as the affidavit of the facts constituting the claim and the amount due;
    50  in  such case, an affidavit as to the default shall be made by the party
    51  or the party's attorney. In an action arising out of a  consumer  credit
    52  transaction,  if  the plaintiff is not the original creditor, the appli-
    53  cant shall include: (1) an affidavit by the  original  creditor  of  the
    54  facts constituting the debt, the default in payment, the sale or assign-
    55  ment  of the debt, and the amount due at the time of sale or assignment;
    56  (2) for each subsequent assignment or sale of the debt to another  enti-

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     1  ty,  an  affidavit  of sale of the debt by the debt seller, completed by
     2  the seller or assignor; and (3) an affidavit of a witness of the  plain-
     3  tiff,  which  includes  a  chain  of title of the debt, completed by the
     4  plaintiff  or  plaintiff's witness. The chief administrative judge shall
     5  issue form affidavits to satisfy the requirements  of  this  subdivision
     6  for  consumer  credit  transactions.  When  jurisdiction  is based on an
     7  attachment of property, the  affidavit  must  state  that  an  order  of
     8  attachment  granted in the action has been levied on the property of the
     9  defendant, describe the property and state its value. Proof  of  mailing
    10  the  notice  required by subdivision (g) of this section, where applica-
    11  ble, shall also be filed.
    12    (j) Affidavit. A request for a default judgment entered by the  clerk,
    13  must  be  accompanied  by  an  affidavit by the plaintiff or plaintiff's
    14  attorney stating that after reasonable inquiry, he or she has reason  to
    15  believe  that  the  statute  of limitations has not expired.   The chief
    16  administrative judge shall issue form affidavits to satisfy the require-
    17  ments of this subdivision for consumer credit transactions.
    18    § 12. The civil practice law and rules is  amended  by  adding  a  new
    19  section 7516 to read as follows:
    20    §  7516.  Confirmation  of  an award based on a consumer credit trans-
    21  action. In any proceeding under section 7510 of this article to  confirm
    22  an  award  based  on a consumer credit transaction, the party seeking to
    23  confirm the award shall plead the actual terms  and  conditions  of  the
    24  agreement  to  arbitrate. The party shall attach to its petition (a) the
    25  agreement to arbitrate; (b) the demand  for  arbitration  or  notice  of
    26  intention  to  arbitrate, with proof of service; and (c) the arbitration
    27  award, with proof of service. If the award does not contain a  statement
    28  of the claims submitted for arbitration, of the claims ruled upon by the
    29  arbitrator,  and of the calculation of figures used by the arbitrator in
    30  arriving at the award, then the petition shall contain such a statement.
    31  The court shall not grant confirmation of an award based on  a  consumer
    32  credit  transaction  unless  the  party seeking to confirm the award has
    33  complied with this section.
    34    § 13. Subdivision 2 of section 212 of the judiciary law is amended  by
    35  adding a new paragraph (aa) to read as follows:
    36    (aa)  Not  later  than  January  first,  two thousand twenty-one, make
    37  available Spanish translations of the  additional  notices  in  consumer
    38  credit transaction actions and proceedings required by section 306-d and
    39  subdivision  (j)  of  rule 3212 of the civil practice law and rules, and
    40  make available form affidavits required for a motion for  default  judg-
    41  ment  in  a consumer credit transaction action or proceeding required by
    42  subdivision (f) of section 3215 of the civil practice law and rules.
    43    § 14. Subdivision (c) of section 5019 of the civil  practice  law  and
    44  rules is amended to read as follows:
    45    (c) Change in judgment creditor.  A person other than the party recov-
    46  ering  a  judgment who becomes entitled to enforce it, shall file in the
    47  office of the clerk of the court in which the judgment was  entered  or,
    48  in the case of a judgment of a court other than the supreme, county or a
    49  family court which has been docketed by the clerk of the county in which
    50  it  was  entered,  in  the  office  of  such county clerk, a copy of the
    51  instrument on which his authority is based,  acknowledged  in  the  form
    52  required to entitle a deed to be recorded, or, if his authority is based
    53  on  a  court  order, a certified copy of the order. Upon such filing the
    54  clerk shall make an appropriate entry on his  docket  of  the  judgment.
    55  This  subdivision shall not apply when there is a change to the owner of

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     1  a debt through a sale, assignment, or other transfer where  no  judgment
     2  exists.
     3    §  15. This act shall take effect immediately; provided, however, that
     4  sections two, three, five, six, seven,  eight,  nine,  ten,  eleven  and
     5  twelve shall take effect on the one hundred eightieth day after it shall
     6  have  become  a law and shall apply to actions and proceedings commenced
     7  on or after such date; and provided, further, that section four of  this
     8  act  shall  take  effect  on the one hundred fiftieth day after this act
     9  shall have become a law.
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