BANK OF AMERICA v. DIAMANTE (2022)

ORDERED that the order is affirmed, without costs.

In this action, plaintiff seeks to recover the principal sum of $6,194.73 for breach of a credit card agreement and upon an account stated. Defendant, a self-represented litigant, interposed an answer containing a counterclaim, which asserted violations of the Fair Debt Collection Practices Act (15 USC § 1692 et seq.) (FDCPA). Thereafter, plaintiff moved for summary judgment dismissing the counterclaim and on the complaint.

In a supporting affidavit, a custodian of records for plaintiff averred, among other things, that she had personally reviewed the relevant information and records concerning defendant's credit card account, which were made in the ordinary course of business and that it was the regular course of plaintiff's business to do so at or about the time of the transactions. Included among the records she viewed was defendant's application for a credit card account which had resulted in the opening of the account. She stated that the records indicate that defendant used the credit card and/or authorized the use of the card to obtain goods or services and to transfer outstanding balances, and that defendant was provided with periodic statements of the account. The statements reflect various purchases and certain payments made to the account. She alleged that defendant had breached the credit card agreement by failing to make payments as requested and that the principal sum of $6,194.73 remains due. Various supporting documents were annexed to plaintiff's moving papers. Defendant opposed the motion, arguing that plaintiff failed to submit evidence in admissible form and that outstanding discovery requests were necessary to support defendant's counterclaim. Defendant also asserted conclusorily that plaintiff had transferred its debt to a third-party debt collector, i.e., the law firm hired to represent plaintiff in this action.

By order entered August 9, 2019, the Civil Court granted plaintiff's motion.

We find that plaintiff sufficiently established its prima facie entitlement to summary judgment on its cause of action for breach of contract. Contrary to defendant's contention, plaintiff presented evidence that there was a credit card agreement, which defendant accepted by his use of a credit card issued by plaintiff and by payments made thereon, and which agreement was breached by defendant when he failed to make the required payments (see Citibank [South Dakota], N.A. v Keskin, 121 AD3d 635, 636 [2014]; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522 [2012]; Citibank [S.D.], N.A. v Sablic, 55 AD3d 651 [2008]). Even in the absence of a signed credit card agreement, defendant would not be relieved of his obligation to pay for goods and services received on credit (see Citibank v Roberts, 304 AD2d 901, 902 [2003]; Feder v Fortunoff, Inc., 123 Misc 2d 857 [Sup Ct, Nassau County 1984]). Moreover, the affidavit of an employee of plaintiff was sufficient to lay a foundation for plaintiff's business records establishing the breach of the credit card agreement and the balance due on the credit card (see CPLR 4518 [a]; see Discover Bank v Witt, 62 Misc 3d 139[A], 2019 NY Slip Op 50057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

The burden thereupon shifted to defendant “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), which defendant failed to do. Consequently, the Civil Court properly granted the branch of plaintiff's motion seeking summary judgment on its cause of action for breach of contract.

To the extent that defendant asserts a violation of the FDCPA, such counterclaim cannot be maintained against plaintiff-bank as it “does not generally apply to a creditor seeking to enforce a contract (see, 15 USC § 1692a [6] [F] [iii] ․)” (United Cos. Lending Corp. v Candela, 292 AD2d 800, 801-802 [2002]; see Pirrelli v OCWEN Loan Servicing, LLC, 129 AD3d 689, 693 [2015]; Capital One Bank [USA] N.A. v Iqbal, 56 Misc 3d 136[A], 2017 NY Slip Op 51009[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Cavalry Portfolio Servs., LLC v Renne, 27 Misc 3d 129[A], 2010 NY Slip Op 50615[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, the branch of plaintiff's motion seeking summary judgment dismissing the counterclaim was likewise properly granted. To the extent the counterclaim may actually be seeking recovery from plaintiff's attorneys, no cause of action can lie against them here as they are not parties to the instant action.

Defendant's remaining contentions are either without merit or improperly raised for the first time on appeal (see Elbayoumi v TD Bank, N.A., 185 AD3d 786, 788 [2020]). We note that we do not consider any materials which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.