Plaintiff’s counsel commenced this action to collect a debt owed to Plaintiff Midland Funding by Defendant Jean M. Joyce with an address of 100 8th Avenue, Apt. 4E, Brooklyn, NY 11215. A Lawyer said that, counsel for Plaintiff MDF mailed a validation notice to the Defendant at the above address in full compliance with the Fair Debt Collection Practices Act. Thereafter, the answering party in this action, also named Jean M. Joyce (“JMJ”), contacted the office of Plaintiff’s counsel, advising that she had received the validation notice but that she was not the Jean M. Joyce from whom counsel was seeking payment. Upon information and belief, through verbal representations of Ms. Joyce, Plaintiff’s counsel verified that the date of birth and social security number for Ms. Joyce were not the same as the actual Defendant Joyce.
Based upon the social security number of the true Defendant in question, Plaintiff’s counsel utilized the true Defendant’s credit report and the information available to counsel to confirm that the 8th Avenue address was indeed the Defendant in question’s address. Thereafter, based upon the information provided by Plaintiff MDF and the information shown on Defendant’s credit report, the Defendant was served with a Summons and Complaint at the 8th Avenue address, seeking monies owed to Plaintiff MDF.
A lawyer said that, plaintiff’s counsel received a letter from the counsel of Ms. Joyce, stating that they were proceeding against the wrong individual. However, no pedigree information was provided, confirming Ms. Joyce’s identity. Consequently, Ms. Joyce was not responsible for the debt. Further, Plaintiff’s counsel would not take any efforts to collect the debt from her. Despite this assurance, Ms. Joyce’s counsel faxed a letter to Plaintiff’s counsel, advising that Ms. Joyce was planning on filing an Answer and Counterclaims/Cross-Claims.
Upon receipt of the letter, Plaintiff’s counsel called Ms. Joyce’s counsel’s office, leaving a message, requesting to discuss the matter in hopes of resolution. The telephone call was not returned. Plaintiff’s counsel faxed a letter to Ms. Joyce’s counsel, advising that its previous voice mail message had not been returned and leaving a further request to resolve this matter. Ms. Joyce’s counsel returned the phone call, leaving a voice mail message. Thereafter, Plaintiff’s counsel received an Answer and Counterclaims/Cross-Claims from Ms. Joyce’s counsel.
Consequently, Plaintiff’s counsel argues that since the above-referenced Answer and Counterclaims/Cross-Claims have been filed by a Non-Party to this action, because Ms. Joyce is not the Defendant in question and has acknowledged such, her Non-Party Answer should be stricken. Plaintiff further alleges that Ms. Joyce’s Counterclaims/Cross-Claims should be dismissed, because additional non-parties have been added to this action without leave of the Court.
Plaintiff’s counsel points out that Ms. Joyce’s Counterclaims/Cross-Claims include two separate class actions, alleging that she is bringing this consumer class action on behalf of unknown consumers, who were subject to unfair and deceptive business and collection practices in violation of the Fair Debt Collection Practices Act as well as claims for violations of New York General Business Law, fraud and civil trespass.
Ms. Joyce’s counsel argues that Ms. Joyce, an attorney with a 24 year credit history, containing zero negative credit information, has been possibly harmed and injuredbecause she was improperly served, since she is not the Defendant in question. She alleges that the Plaintiff’s process server unlawfully entered into her apartment building, without her permission, and taped a Summons and Complaint to her apartment door. Her building has a locked front entrance and access to her apartment door is only available to authorized guests. Thus, the documents taped to her door were visible to her landlord, neighbors, guests and any other persons, who entered the building.
The issues in this case are whether the defendant’s answer should be stricken being a non-party to the case; and whether defendant’s counterclaim and cross-claim should be dismissed on the ground that she did not sustain any injuries in the filing of the complaint.
The Court held that, upon review of the parties’ papers, the Court agrees that it is clear, based upon the continuing representations by Ms. Joyce and her counsel, there is no dispute between the parties that Ms. Joyce is not the true Defendant in this action. Her Social Security Number and Date of birth are not the same as the Defendant in question. However, in their due diligence, when Plaintiff’s counsel utilized the credit report of the true Defendant in question along with the information available to them, they confirmed that the 8th Avenue address was indeed the true Defendant in question’s address. Thus, Ms. Joyce was served. When Ms. Joyce’s counsel alerted Plaintiff’s counsel that Ms. Joyce was not the Defendant in question, Plaintiff’s counsel faxed a letter to her, advising that her client was not the individual against whom Plaintiff was proceeding, that Ms. Joyce was not responsible for the debt, and that they would take no efforts to collect the debt from her. Consequently, Ms. Joyce is a Non-Party to this action.
Although Ms. Joyce argues that she should be considered the Defendant, because service took place at her residence at the 8th Avenue address, she is unaffected by this service. As Plaintiff’s counsel points out, he confirmed that Ms. Joyce was not responsible for the debt and he would take no efforts to collect the debt from her, because she does not have the same Social Security Number or Date of Birth as the true Defendant in question. In fact, Ms. Joyce’s own Cross-Claims prove that she is entirely unaffected nor injured by this action, because the debt in question does not even appear on her credit report. According to Plaintiff’s counsel, the credit report of the true Defendant in question does show the debt at issue.
This Court concedes that a non-party might be permitted to appear if such party would be affected or will be injured by the outcome of a particular litigation. In fact, CPLR 1001(a) requires those non-parties to appear if they might be inequitably affected by a judgment in the action.
The Court notes that in the present case Ms. Joyce will not be affected by any judgment that may result, because she is not the true Defendant in question. Her Social Security Number and Date of Birth differ from the true Defendant in question. Thus, if the instant action results in a judgment in favor of Plaintiff MDF, it cannot be enforced against Ms. Joyce.
The Court also observes that Plaintiff’s counsel offered Ms. Joyce’s counsel a mutual discontinuance. Acceptance of this offer would have extinguished any perceived possibility that Ms. Joyce’s rights might be affected by Plaintiff’s claims. However, Ms. Joyce chose not to accept the discontinuance although it would not have precluded her from proceeding with her alleged Counterclaims/Cross-Claims in another forum.
Therefore, the Court finds that Ms. Joyce has no reason to assert an Answer, because she is not affected nor injured by the instant litigation. Thus, she has no basis for her standing. Consequently, since Ms. Joyce’s Answer is that of a disinterested non-party, her Answer is stricken.
As regards Ms. Joyce’s Counterclaim and cross claim, the Court cited CPLR Section 3019(d) clearly states that a cause of action contained in a counterclaim or a cross-claim shall be treated as if it were contained in a complaint except that separate process may not be had unless the Court so orders. In the present case, Kings County Civil Court advised counsel for Counterclaim/Cross-Claim Defendant Household Bank a/k/a HSBC Card Services, Inc. (“HSBC”) that Ms. Joyce failed to properly request the Court’s permission. Thus, the third parties are a nullity. Since Ms. Joyce was required to have the Court to order the inclusion of the four separate non-party Counterclaim/Cross-Claim Defendants before the filing and serving of the Counterclaims/Cross-Claims but failed to do so, this Court dismisses those Cross-Claims against those four non-parties.
As the Appellate Division observed, a non-party is not entitled to assert a Counterclaim in an action, where the non-party appears. Since Ms. Joyce admits that she is a non-party in this action, her Counterclaims/Cross-Claims are dismissed. It is important to note that Ms. Joyce is in no way prejudiced by the dismissal of her Counterclaims/Cross-Claims, because she was never truly a party to this action. Although Ms. Joyce purports to have suffered an injury, this Court is not the proper forum to seek redress. Accordingly, Plaintiff’s motion is hereby granted, Defendant’s Answer is stricken and her Counterclaims/Cross-Claims are dismissed.
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