Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application: Papers Numbered Plaintiff’s Notice of Motion with Affirmation/Affidavits annexed 1-2 Defendant’s Affirmation in Opposition annexed 3 Plaintiff’s Affirmation in Reply 4 DECISION and ORDER After oral argument and upon the foregoing cited papers, the decision on Plaintiff’s summary judgment motion is as follows: Plaintiff LVNV FUNDING, LLC (hereinafter “Plaintiff”) commenced this action on June 15, 2021, against defendant LEANGWONG KUMPITUCK (“Defendant”) for breach of contract and account stated in the amount of $924.78. On July 2, 2021, Plaintiff filed an Affidavit of Service with the Court showing that service was made on June 26, 2021, pursuant to CPLR 308(2). On July 6, 2021, the Defendant, appearing pro se, filed an oral answer with the Clerk’s Office. After several conferences, a trial date was set for February 28, 2023. Prior to the trial date, Plaintiff filed the instant motion, on January 27, 2023. On the return date, the parties were provided with a briefing schedule. The Defendant submitted an affidavit in opposition, prepared through a translation service and a Thai interpreter.1 Plaintiff submitted an affirmation in reply. The parties2 appeared before the undersigned on June 28, 2023, for argument. The motion was marked submitted. Facts The Defendant allegedly opened a credit card with Credit One Bank, N.A. (“Credit One”), the original creditor, on November 23, 2014. After the Defendant failed to make certain payments, the full balance was charged off on June 2, 2017, with a remaining balance of $1,174.78. On July 20, 2017, Defendant’s account was included in a series of sales of charged-off accounts that was then sold and assigned to Plaintiff. Annexed as Exhibit “C” to Plaintiff’s moving papers is an affidavit and supplemental affidavit of Credit One employee Tryssa Noyes. Ms. Noyes states that the affidavits are made based upon her personal knowledge of Credit One’s books and records, along with her knowledge of its procedures for creating and maintaining such business records. Ms. Noyes states that Credit One generated and mailed account statements to the Defendant and that Credit One’s business records do not reflect that any of the statements were returned by the post office or that the Defendant objected to them. Plaintiff’s moving papers also contain bills of sale and assignments from Credit One to MHC Receivables, LLC (dated June 30, 2017); MHC Receivables, LLC to FNBM, LLC (dated July 20, 2017); MHC Receivables, LLC to Sherman Originator III LLC (dated July 20, 2017); and FNBM, LLC to Sherman Originator III LLC (dated July 20, 2017). A declaration of account transfer dated July 20, 2017 is also annexed, which demonstrates the transfer, sale, and assignment of the Defendant’s account from Sherman Originator III LLC to Sherman Originator LLC to the Plaintiff. Plaintiff also annexes affidavits from Paul Fallavollita and Arlah Klugh, authorized representatives of Sherman Originator III LLC and Sherman Originator LLC respectively, which attest that the Defendant’s account was included in the sales. Lastly, Plaintiff includes an affidavit of Casey Moon, an authorized representative of the Plaintiff, who attests to the amount owed by the Defendant. Ms. Moon makes her affidavit based upon her personal knowledge of the Plaintiff’s books and records. Ms. Moon avers that the amount owed by the Defendant is $924.78, the amount sued for in the complaint. In opposition, the Defendant claims various defenses, including that the Plaintiff lacks standing, the amount sued for is excessive compared with the original debt, and that the suit was filed beyond the statute of limitations. Summary Judgment Standard A motion for summary judgment should be granted if “upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties.” (CPLR 3212). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v. Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 [1966]). Plaintiff’s complaint pleads two causes of action: breach of a credit card agreement and account stated. The Plaintiff established that the Defendant was liable for breach of a credit card agreement by demonstrating that there was a “credit card agreement, that [the Defendant] accepted agreement by using credit card and making payments thereon, and that agreement was breached by [the Defendant] when [s]he failed to make required payments.” (Am. Express Bank, FSB v. Scali, 142 AD3d 517 [2d Dept 2016]). In Cach, LLC v. Aspir, the Appellate Division held that “[a]n account stated is an agreement between [the] parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due” (137 AD3d 1065, 1066 [2d Dept], quoting Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868, 869 [3d Dept 1993]), and further, “a plaintiff must show that the defendant received the plaintiff’s account statements for payment and retained these statements for a reasonable period of time without objection” (id., citing Castle Oil Corp. v. Bokhari, 52 AD3d 762 [2d Dept 2008]). The Plaintiff has established its entitlement to judgment on its cause of action for an account stated by demonstrating that the Defendant received the Plaintiff’s account statements for payment and retained these statements for a reasonable period of time without objection. Now that the Plaintiff has established its entitlement to judgment on both causes of action as a matter of law, the burden shifts to the Defendant to raise a triable issue of fact. The Court finds most of the Defendant’s argument to be without merit. As detailed above, the Plaintiff has established its chain of title of the debt, along with the knowledge of the mailing procedures and practices for the original creditor. The one defense that gives this Court consideration is the affirmative defense that the lawsuit was filed beyond the statute of limitations. This affirmative defense was preserved in the Defendant’s amended answer. The Defendant alleges that the original creditor, Credit One, has its principal place of business in Nevada, which has a four-year statute of limitations for breach of an open-ended account. At the time the instant matter was initiated, the applicable statute of limitations for causes of action on a breach of contract in New York was six years.3 CPLR 202, New York’s borrowing statute, states that “An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.” In order for this action to be within the statute of limitations, it must be timely under both New York and Nevada law. In Portfolio Recovery Assoc., LLC v. King, the Court of Appeals held that if the “claimed injury is an economic one, the cause of action typically accrues ‘where the plaintiff resides and sustains the economic impact of the loss’” (14 NY3d 410, 416 [2010] citing Glob. Fin. Corp. v. Triarc Corp., 93 NY2d 525, 527 [1999])). The Plaintiff stands in the shoes of the original creditor; and therefore, the Court must ascertain when the cause of action accrued in favor of Credit One (Id.). According to the Plaintiff’s complaint, the default on the account occurred on December 1, 2016, when the last payment was made by the Defendant to Credit One. Under Nevada law, the statute of limitations for breach of contract based upon a written instrument is six years and based upon an open account or a contract not found in writing is four years (Nev Rev Stat Ann 11.190a). A credit card account is defined as “an open line of credit offered by an issuer to a cardholder which is accessed by obtaining money, property, goods, services or anything of value by the use of a credit card” (Nev Rev Stat Ann 97A.060). After an exhaustive case search, this Court cannot find any decision by a Nevada court applying either a six-year or four-year statute of limitations to a breach of a credit card.4 However, based upon the statutory definition of a “credit card account” and the absence of a written agreement between the parties, the Court finds that the four-year statute of limitations applies in this case. On its face, the action is untimely. The default was alleged to have occurred on December 1, 2016, and the action was instituted on June 15, 2021. However, as jurists of this court have written on extensively, several states tolled the statute of limitations during the COVID-19 pandemic. On March 31, 2020, Governor Steve Sisolak of Nevada issued a Declaration of Emergency, Directive 009, which tolled the “specific time limit for the commencement…of any legal action…” This toll remained in effect until 11:59pm on June 30, 2020, when Declaration of Emergency Directive 026 rescinded the tolling provision of Directive 009. The toll remained in effect for a total of 90 days. With the additional 90 days, Plaintiff should have filed this matter on or before March 1, 2021. It did not do so until June 15, 2021. The Court pauses to acknowledge that the statute of limitations was tolled for a total of 220 days in New York as a result of various Executive Orders signed by Governor Andrew M. Cuomo. This action would be timely if it were given the benefit of the New York tolling orders. One purpose of the borrowing statute is to dissuade “forum shopping by nonresident plaintiffs who come to New York, seeking to take advantage of a more favorable statute of limitations than that which is available to them elsewhere” (2138747 Ontario, Inc. v. Samsung C&T Corp., 144 AD3d 122, 125 [1st Dept 2016], affd, 31 NY3d 372 [2018]). Affording Plaintiff the benefit of the New York toll would go against the spirit and policy of the borrowing statute. This matter would not have been timely filed in Nevada. However, the Defendant has not proffered definitive proof of Credit One’s Nevada residence. Defendant makes this assertion “upon information and belief.” A review of Plaintiff’s motion does show that Credit One’s address on the account statements was a PO Box in Nevada, Nevada law was to govern the credit card agreement, and that each of the affidavits was notarized in Nevada. While the Court finds this enough to raise a triable issue, it does not take the drastic remedy of “searching the record” and granting summary judgment to the Defendant, who did not cross-move for such relief. Plaintiff has established its prima facie entitlement to judgment as a matter of law. In response, the Defendant raised an issue to the principal place of business of the original creditor and the timeliness of this lawsuit. As such, the sole issue for trial is Credit One’s principal place of business. Accordingly, it is hereby ORDERED that the Plaintiff’s motion for summary judgment is DENIED; and it is further ORDERED that this matter shall proceed to immediate trial on the sole issue of Credit One’s principal place of business, on October 3, 2023, at 9:25am in Part 11C of the Civil Courthouse. The foregoing constitutes the Decision and Order of the Court. Dated: July 28, 2023
