Preview
FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CLINTON
MIDLAND CREDIT MANAGEMENT, INC,
Plaintiff,
NOTICE OF ENTRY
vs.
INDEX NO.: 2022-00022471
JUSTIN WEMPLE,
Defendant.
PLEASE TAKE NOTICE, that the within is a true copy of the Order entered in the Office
of the Clerk of the County of Clinton on September 26, 2023.
DATED: September 28, 2023
Williamsville, New York
Mand 1 LliW Group, LLP
Attorne for Plaintiff
Heathe . Johnson, Esq.
600 Es jay Rd., Suite 200
Williamsville, NY 14221
(833) 769-2757
TO: JUSTIN WEMPLE
1310 TROUT POND RD 146
KEESEVILLE NY 12944-3226
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STATE OF NEW YORK
SUPREME COURT COUNTY OF CLINTON
MIDLAND CREDIT MANAGMENT,
DECISION AND ORDER
Plaintiff,
-against-
Index No.: 2022-00022471
RJI No.: 09-1-2023-0318E
JUSTIN WEMPLE,
Defendant.
McGAHAY, J.
This action for money damages, sounding in breach of contract, was commenced by the
filing of the summons and complaint with the Clinton County Clerk on December 31, 2022. As
alleged in the complaint, Comenity Capital Bank, the original creditor in this action and Plaintiff's
assignor, issued a consumer credit account to the Defendant.
Plaintiffs'
Presently before the Court is motion for summary judgment, which is decided
herein upon consideration of NYSCEF Document Numbers 6-17, 22-28.
In support of summary judgment, Plaintiff has submitted the affidavit of non-expiration of
the statute of limitations, and an affidavit of facts and sale of account by original creditor.
Plaintiff has also submitted the affidavit of Taylor Berntson (NYSCEF Document # 12),
an employee of Plaintiff Midland Credit Management, who claims personal knowledge of the
procedures for creating and maintaining Plaintiff's Business Records. including the procedures
relating to the purchase and/or assignment of consumer credit accounts. Berntson states Plaintiff's
Business Records were made in the regular course of business, that it was the regular course of
such business to make the Business Records, and that the records were made at or near the time of
the events recorded.
Berntson further claims on 2021-05-21, Plaintiff purchased or was assigned the Account
from COMENITY CAPITAL BANK ("Debt Seller"), and at that time, Debt Seller assigned all of
its interest in the Account, including the right to any proceeds from the Account to Plaintiff (the
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"Purchase"). As part of the Purchase, Business Records relating to the Account were transferred
to Plaintiff and incorporated into Plaintiffs Business Records. She further states, to the extent
Business Records included records prepared by a third party, including but not limited to the
Original Creditor, such records were incorporated into Plaintiffs Business Record, and following
the Purchase, those Business Records were maintained in the ordinary course of Plaintiffs
Business.
As reflected in Berntson's affidavit, and the accompanying business records attached
thereto, the Defendant entered into a contract with Comenity Capital Bank (the Original Creditor)
on August 8, 2019, for a consumer credit card. The Defendant made his last payment of $70.00 on
September 10, 2020. At the time of charge-off, there was a remaining balance of $2,791.56. The
amount the Plaintiff presently seeks includes the charge-off balance of $2,791.56, post-charge-off
interest of $0.00, and post charge-off fees and charges of $0.00, less post-charge-off credits or
payments made by or on behalf of the Defendant of $0.00, plus cost and disbursements in this
action.
In opposition to the motion, Defendant does not offer any facts addressed to the merits of
the action to demonstrate the existence of facts sufficient to require a trial. Instead, Defendant
argues that this Court lacks personal jurisdiction over this matter, that the statute of limitations in
this matter has run, that the matter is improperly venued, and that he is judgment proof.
Summary judgment will be granted where the Court has determined that there is no
substantial issue of fact in the case (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395,
404 [1957]). To obtain summary judgment, it is necessary that the movant establish, through
evidentiary proofin admissible form, its cause of action or defense sufficiently to warrant the court
as a matter of law in directing judgment in its favor (Zuckerman v. City of New York, 49 NY2d
557, 562 [1980]). The Court is thus faced with finding issues rather than determining them.
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(Sillman v. Twentieth Century Fox Film Corp., 3 NY2d at 404). In making this determination, the
court must view the evidence in the light most favorable to the non-moving party and accord the
non-moving party the benefit of every reasonable inference. (Negri v. Stop and Shop, Inc., 65
NY2d 625 [1985]).
Where the movant meets its burden, the burden then falls on those opposing the motion to
demonstrate, by evidentiary proof in admissible form, the existence of facts sufficient to require a
trial (Burton v. Ertel, 107 AD2d 909, 910 [3d Deptl985]).
The essential elements for a breach of contract cause of action for damages are the
existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach
of his or her contractual obligations, and damages resulting from the breach (Carroll v Rondout
Yacht Basin, Inc., 162 AD3d 1150, 1152 [3d Dept 2018]).
Here, Plaintiff has tendered sufficient evidence that there was a credit card agreement,
which the defendant accepted by using the credit card and making payments thereon, and that the
agreement was breached by the defendant when he failed to make required payments (see Citibank
[S.D.], N.A. v. Brown--Serulovic, 97 AD3d at 523, 948 N.Y.S.2d 331; Citibank [South Dakotal
N.A. v. Sablic, 55 A.D3d 651, 652 [2d Dept 2008]; Citibank (S.D.) N.A. v Roberts, 304 AD2d 901
[3d Dept 2003]). The Court further finds the submissions otherwise conform to the requirements
of 22 NYCRR §§ 202.27-a and 202.27-B.
In opposition Defendant argues that the Court lacks personal jurisdiction, as the summons,
affidavit of service, the RJI filed and the motion for summary judgment in this matter all bear an
incorrect address for the Defendant of "1310 Trout Pond Road 146, Keeseville, Essex County,
"I46"
NY 12944-3226". Defendant states that his correct address does not include the number in
it.
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The affidavit of service that was submitted in this matter establishes service of the
Summons and Complaint upon the Plaintiff pursuant to CPLR § 308(1), by personally delivering
such documents to the Defendant at "1310 Trout Pond Road 146, Keeseville, Essex County, NY
12944-3226". Notwithstanding the apparent error in the Defendant's address as listed on the
affidavit of service, Defendant does not deny that the was personally delivered the summons in the
State of New York, which is all that is required to establish personal service pursuant to CPLR §
308(1). The Court therefore cannot find that this argument is a sufficient reason to deny summary
judgment.
Defendant next argues that the summons in this matter states the basis of the venue in this
action is the Defendant's residence in Clinton County; however, he does not reside in Clinton
County, but resides in Essex County. Even if the basis for the venue of this matter being in Clinton
County is incorrect, such issue does not affect this Court's jurisdiction to preside over this matter
(see Graham v Sylvan Lawrence Co., Inc., 82 AD2d 980 [3d Dept 1981]). At most, the error could
result in a change of venue, upon a proper motion seeking such relief (see CPLR Article 5 et. seq.).
Defendant next argues that the three-year statute of limitations of this action has expired.
The Court notes that the statute of limitations for a breach of contract cause of action is six years
(see CPLR § 213[2]), not three years, which accrues when the contract is breached (see Deutsche
Bank Nati. Tr. Co. Tr. for Harborview Mtge. Loan Tr. v Flagstar Capital A4arkets Corp., 32 NY3d
139, I45 [2018]). The proof before the Court establishes that the cause of action accrued on
September 10, 2020 and this this action was commenced in December of the year 2022, which is
well within the statute of limitations. The Court therefore cannot find that this argument somehow
precludes an order granting summary judgment.
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Finally, Defendant states that his only source of income is social security disability which
is exempt from collection. Such claim, even if true, is not a defense to the Court entering a
judgment against the defendant.
None of the arguments or proof tendered by Defendant rebut Plaintiff's showing of
entitlement to summary judgment by demonstrating, through evidentiary proof in admissible form,
the existence of facts sufficient to require a trial. The Count therefore. is granting the Plaintiff s
motion. Accordingly, it is hereby
ORDERED, that the Plaintiffs motion is granted in its entirety; and it is further
ORDERED, that Plaintiff Midland Credit Management, Inc is entitled to judgment against
the Defendant, Justin Wemple, in the amount of $2,791.56, plus costs and disbursements to be
taxed by the clerk, and interest at the statutory rate from the date of this Order; and it is further
ORDERED that Plaintiffshall submit a proposed judgment to the clerk in conformity with
the Court's determinations made herein; and it is further
ORDERED that this original decision is being uploaded by the Court to NYSCEF, and
Plaintiff's Counsel shall, within twenty (20) days of the date hereof, serve a copy of this Decision
and Order with notice of entry upon the Defendant, and shall thereafter file proof of service.
SOORDERED. .
Dated: September 26, 2023
Elizabethtown, NY Hon. Allison M. McGahay, J.S.C.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CLINTON
Midland Credit Management, Inc, AFFIDAVIT OF MAIL SERVICE
Plaintiff,
Index No.: 2022-00022471
vs.
JUSTIN WEMPLE,
DEFENDANT.
I, Vanessa Zapp hereby certify that on the day of Oaugu , 20 23 a Notice of Entry has
been deposited in an official depository under the exclusive care and custody of the U.S. Postal Service
addressed to:
JUSTIN WEMPLE
1310 TROUT POND RD 146
KEESEVILLE NY 12944-3226
Para al
Sworn to before me this 4 day of C)ch \oer , 20E.
Notary Public
Samantha J. Myers
Notary Public, State of New York
No. 01MY6357244
Qualified in Niagara County
Commission Expires 04-17-2025
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Preview
FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CLINTON MIDLAND CREDIT MANAGEMENT, INC, Plaintiff, NOTICE OF ENTRY vs. INDEX NO.: 2022-00022471 JUSTIN WEMPLE, Defendant. PLEASE TAKE NOTICE, that the within is a true copy of the Order entered in the Office of the Clerk of the County of Clinton on September 26, 2023. DATED: September 28, 2023 Williamsville, New York Mand 1 LliW Group, LLP Attorne for Plaintiff Heathe . Johnson, Esq. 600 Es jay Rd., Suite 200 Williamsville, NY 14221 (833) 769-2757 TO: JUSTIN WEMPLE 1310 TROUT POND RD 146 KEESEVILLE NY 12944-3226 1 of 7 FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF DOC. NO. 31 F I aED CLERK RECEIVED INDEX NYSCEF: NO. 10/04/2023 2022-00022471 : CLINTON COUNTY 09 /2 6/2023 03 : 55 PM| NYS 2EF DOC. NO. 29 RECEIVED NYSCEF: 09/26/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF CLINTON MIDLAND CREDIT MANAGMENT, DECISION AND ORDER Plaintiff, -against- Index No.: 2022-00022471 RJI No.: 09-1-2023-0318E JUSTIN WEMPLE, Defendant. McGAHAY, J. This action for money damages, sounding in breach of contract, was commenced by the filing of the summons and complaint with the Clinton County Clerk on December 31, 2022. As alleged in the complaint, Comenity Capital Bank, the original creditor in this action and Plaintiff's assignor, issued a consumer credit account to the Defendant. Plaintiffs' Presently before the Court is motion for summary judgment, which is decided herein upon consideration of NYSCEF Document Numbers 6-17, 22-28. In support of summary judgment, Plaintiff has submitted the affidavit of non-expiration of the statute of limitations, and an affidavit of facts and sale of account by original creditor. Plaintiff has also submitted the affidavit of Taylor Berntson (NYSCEF Document # 12), an employee of Plaintiff Midland Credit Management, who claims personal knowledge of the procedures for creating and maintaining Plaintiff's Business Records. including the procedures relating to the purchase and/or assignment of consumer credit accounts. Berntson states Plaintiff's Business Records were made in the regular course of business, that it was the regular course of such business to make the Business Records, and that the records were made at or near the time of the events recorded. Berntson further claims on 2021-05-21, Plaintiff purchased or was assigned the Account from COMENITY CAPITAL BANK ("Debt Seller"), and at that time, Debt Seller assigned all of its interest in the Account, including the right to any proceeds from the Account to Plaintiff (the 1 of 5 2 of 7 FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF DOC. NO. 31 COUNTY CLERK 09/26 RECEIVED INDEX NYSCEF: NO. 10/04/2023 2022-00022471 |FI aED: CLINTON /2023 03 : 55 PlÈ NYS:EF DOC. NO. 29 RECEIVED NYSCEF: 09/26/2023 "Purchase"). As part of the Purchase, Business Records relating to the Account were transferred to Plaintiff and incorporated into Plaintiffs Business Records. She further states, to the extent Business Records included records prepared by a third party, including but not limited to the Original Creditor, such records were incorporated into Plaintiffs Business Record, and following the Purchase, those Business Records were maintained in the ordinary course of Plaintiffs Business. As reflected in Berntson's affidavit, and the accompanying business records attached thereto, the Defendant entered into a contract with Comenity Capital Bank (the Original Creditor) on August 8, 2019, for a consumer credit card. The Defendant made his last payment of $70.00 on September 10, 2020. At the time of charge-off, there was a remaining balance of $2,791.56. The amount the Plaintiff presently seeks includes the charge-off balance of $2,791.56, post-charge-off interest of $0.00, and post charge-off fees and charges of $0.00, less post-charge-off credits or payments made by or on behalf of the Defendant of $0.00, plus cost and disbursements in this action. In opposition to the motion, Defendant does not offer any facts addressed to the merits of the action to demonstrate the existence of facts sufficient to require a trial. Instead, Defendant argues that this Court lacks personal jurisdiction over this matter, that the statute of limitations in this matter has run, that the matter is improperly venued, and that he is judgment proof. Summary judgment will be granted where the Court has determined that there is no substantial issue of fact in the case (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). To obtain summary judgment, it is necessary that the movant establish, through evidentiary proofin admissible form, its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The Court is thus faced with finding issues rather than determining them. 2 2 of 5 3 of 7 FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF FI DOC. NO. 31 CLERK 09/2 RECEIVED INDEX NYSCEF: NO. 10/04/2023 2022-00022471 SED: CLINTON COUNTY 6/2023 03: 55 PM| NYS:EF DOC. NO. 29 RECEIVED NYSCEF: 09/26/2023 (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d at 404). In making this determination, the court must view the evidence in the light most favorable to the non-moving party and accord the non-moving party the benefit of every reasonable inference. (Negri v. Stop and Shop, Inc., 65 NY2d 625 [1985]). Where the movant meets its burden, the burden then falls on those opposing the motion to demonstrate, by evidentiary proof in admissible form, the existence of facts sufficient to require a trial (Burton v. Ertel, 107 AD2d 909, 910 [3d Deptl985]). The essential elements for a breach of contract cause of action for damages are the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach (Carroll v Rondout Yacht Basin, Inc., 162 AD3d 1150, 1152 [3d Dept 2018]). Here, Plaintiff has tendered sufficient evidence that there was a credit card agreement, which the defendant accepted by using the credit card and making payments thereon, and that the agreement was breached by the defendant when he failed to make required payments (see Citibank [S.D.], N.A. v. Brown--Serulovic, 97 AD3d at 523, 948 N.Y.S.2d 331; Citibank [South Dakotal N.A. v. Sablic, 55 A.D3d 651, 652 [2d Dept 2008]; Citibank (S.D.) N.A. v Roberts, 304 AD2d 901 [3d Dept 2003]). The Court further finds the submissions otherwise conform to the requirements of 22 NYCRR §§ 202.27-a and 202.27-B. In opposition Defendant argues that the Court lacks personal jurisdiction, as the summons, affidavit of service, the RJI filed and the motion for summary judgment in this matter all bear an incorrect address for the Defendant of "1310 Trout Pond Road 146, Keeseville, Essex County, "I46" NY 12944-3226". Defendant states that his correct address does not include the number in it. 3 3 of 5 4 of 7 FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF F I DOC. NO. 31 ED : CLINTON COUNTY CLERK 0 9/26/2023 : 55 RECEIVED INDEX NYSCEF: NO. 10/04/2023 2022-00022471 03 PM) NYS EF DOC. NO. 29 RECEIVED NYSCEF: 09/26/2023 The affidavit of service that was submitted in this matter establishes service of the Summons and Complaint upon the Plaintiff pursuant to CPLR § 308(1), by personally delivering such documents to the Defendant at "1310 Trout Pond Road 146, Keeseville, Essex County, NY 12944-3226". Notwithstanding the apparent error in the Defendant's address as listed on the affidavit of service, Defendant does not deny that the was personally delivered the summons in the State of New York, which is all that is required to establish personal service pursuant to CPLR § 308(1). The Court therefore cannot find that this argument is a sufficient reason to deny summary judgment. Defendant next argues that the summons in this matter states the basis of the venue in this action is the Defendant's residence in Clinton County; however, he does not reside in Clinton County, but resides in Essex County. Even if the basis for the venue of this matter being in Clinton County is incorrect, such issue does not affect this Court's jurisdiction to preside over this matter (see Graham v Sylvan Lawrence Co., Inc., 82 AD2d 980 [3d Dept 1981]). At most, the error could result in a change of venue, upon a proper motion seeking such relief (see CPLR Article 5 et. seq.). Defendant next argues that the three-year statute of limitations of this action has expired. The Court notes that the statute of limitations for a breach of contract cause of action is six years (see CPLR § 213[2]), not three years, which accrues when the contract is breached (see Deutsche Bank Nati. Tr. Co. Tr. for Harborview Mtge. Loan Tr. v Flagstar Capital A4arkets Corp., 32 NY3d 139, I45 [2018]). The proof before the Court establishes that the cause of action accrued on September 10, 2020 and this this action was commenced in December of the year 2022, which is well within the statute of limitations. The Court therefore cannot find that this argument somehow precludes an order granting summary judgment. 4 4 of 5 5 of 7 FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF FI DOC. CLINTON iED: NO. 31 COUNTY CLERK 09/26/2023 03 : 55 RECEIVED INDEX NYSCEF: NO. 10/04/2023 2022-00022471 PM| NYS:EF DOC. NO. 29 RECEIVED NYSCEF: 09/26/2023 Finally, Defendant states that his only source of income is social security disability which is exempt from collection. Such claim, even if true, is not a defense to the Court entering a judgment against the defendant. None of the arguments or proof tendered by Defendant rebut Plaintiff's showing of entitlement to summary judgment by demonstrating, through evidentiary proof in admissible form, the existence of facts sufficient to require a trial. The Count therefore. is granting the Plaintiff s motion. Accordingly, it is hereby ORDERED, that the Plaintiffs motion is granted in its entirety; and it is further ORDERED, that Plaintiff Midland Credit Management, Inc is entitled to judgment against the Defendant, Justin Wemple, in the amount of $2,791.56, plus costs and disbursements to be taxed by the clerk, and interest at the statutory rate from the date of this Order; and it is further ORDERED that Plaintiffshall submit a proposed judgment to the clerk in conformity with the Court's determinations made herein; and it is further ORDERED that this original decision is being uploaded by the Court to NYSCEF, and Plaintiff's Counsel shall, within twenty (20) days of the date hereof, serve a copy of this Decision and Order with notice of entry upon the Defendant, and shall thereafter file proof of service. SOORDERED. . Dated: September 26, 2023 Elizabethtown, NY Hon. Allison M. McGahay, J.S.C. 5 5 of 5 6 of 7 FILED: CLINTON COUNTY CLERK 10/04/2023 10:24 AM INDEX NO. 2022-00022471 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CLINTON Midland Credit Management, Inc, AFFIDAVIT OF MAIL SERVICE Plaintiff, Index No.: 2022-00022471 vs. JUSTIN WEMPLE, DEFENDANT. I, Vanessa Zapp hereby certify that on the day of Oaugu , 20 23 a Notice of Entry has been deposited in an official depository under the exclusive care and custody of the U.S. Postal Service addressed to: JUSTIN WEMPLE 1310 TROUT POND RD 146 KEESEVILLE NY 12944-3226 Para al Sworn to before me this 4 day of C)ch \oer , 20E. Notary Public Samantha J. Myers Notary Public, State of New York No. 01MY6357244 Qualified in Niagara County Commission Expires 04-17-2025 7 of 7