In American Exp. Bank, FSB v. Dalbis, 2011 WL 873512 (N.Y.City Civ.Ct. 2011), Judge Straniere rejected an application for default sought by a Bank against its customer on the basis that there might be a statute of limitations problem and the Bank had not properly proved up the instrument evidencing the debt. Having apparently just appeared at a high school production of “Guys and Dolls”, or maybe his clerk did, Judge Straniere wove Nathan Detroit’s inimitable style into the decison, explaining:
B. “I.O.U. one thousand dollars.’ Signed X!. How is it you can write one thousand, but cannot write your signature? (Nathan Detroit) “I was good in arithmetic, but stunk in English.” (Big Jule) Or, why is it that creditors can produce billing statements but lack the ability to deliver signed agreements or billing statements showing actual use of the credit card? 8. Must There be Some Factual Basis to Support an Affidavit of Facts? It should be noted that in the court file are the motion papers submitted by the plaintiff in the Supreme Court where this application for a default judgment was first made prior to transfer to the Civil Court. An “affirmation of facts” by “Angela Ramirez: Assistant Custodian of Records” is part of those pleadings. The paragraphs of her “affirmation” al-most mirror those in the “affidavit” of Davis. The court will not delve into the intriguing issue as to when “consistent” or “boilerplate” legal pleading become “robo-signing” other than to notice like the voice over in “Dragnet” the only difference may be that “the names have been changed to protect the innocent.” Plaintiff also corrected the error in the Supreme Court papers of having Ms. Ramirez submit an “affirmation,” something available only to attor-neys, physicians and certain other professionals and not an “assistant custodians of records” [CPLR § 2106]. Plaintiff, like Big Jule, apparently, is “good in arthimetic” and capable of producing a numerical total but “stunk in English” and is incapable of establishing how that number was calculated by any verifiable documentary evidence. “But these-these dice ain’t got no spots. They’re blank.” (Nathan Detroit) “I had the spots taken off for luck. But I remember where the spots formerly were.”(Big Jule)“You are going to role blank dice and call em from remembering where the spots formerly was?” (Nathan Detroit) “Why not?” (Big Jule) “I see no reason.” (Nathan Detroit) Or, why some consumer credit agreements are like shooting craps with blank dice. . . . Plaintiff should be prepared to establish when the contract was breached by the defendant, the charges made which constitute the amount claimed due and whether the correct statute of limitations is only one year as found by the court.
There’s more, but it takes a full read. . .