Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 25, 2008. The order, insofar as appealed from, denied defendant's motion (1) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint, and (2) for summary judgment on the counterclaims.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

Plaintiff commenced this action to recover the principal sum of $19,709.69, plus interest totaling $3,321.20. Plaintiff alleged in the verified complaint that it is the assignee of Cavalry SPV I, LLC (Cavalry SPV), which, in turn, is the assignee of Mitsubishi Motors Credit of America, Inc. (Mitsubishi), and, as such, that it is the lawful owner of the consumer credit agreement executed by defendant with Mitsubishi. It is further alleged in the complaint that defendant had breached said consumer credit agreement and owes plaintiff the aforementioned sums. Defendant's answer denied the allegations of the complaint, asserted various affirmative defenses, including lack of standing, and interposed counterclaims against plaintiff based upon alleged violations of the Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.).

Defendant moved for, among other things, dismissal of the complaint on the ground that plaintiff lacked standing to sue him or, in the alternative, for summary judgment dismissing the complaint, and summary judgment on the counterclaims. Defendant's attorney asserted in support of the motion that there was no proof of a valid assignment of the alleged debt to plaintiff. In addition, counsel argued that plaintiff had used misleading and unconscionable means to collect the alleged debt in violation of 15 USC § 1692 (e). Plaintiff opposed the motion [*2]and cross-moved for summary judgment. Plaintiff's papers contained a bill of sale from Mitsubishi to Cavalry SPV, dated November 1, 2007, setting forth the accounts sold, including defendant's account, and an assignment from Cavalry SPV to plaintiff, dated November 1, 2007, setting forth the accounts assigned, including defendant's account.

The Civil Court, inter alia, denied defendant's motion, finding that plaintiff had standing to sue and that there were triable issues of fact warranting a trial.

Upon a review of the record, we find that, in opposition to the branch of defendant's motion seeking dismissal of the complaint or, in the alternative, summary judgment dismissing the complaint on the ground that plaintiff lacked the capacity to sue, plaintiff made a sufficient showing, through documentary evidence, that defendant's account was sold from Mitsubishi to Cavalry SPV and then assigned to plaintiff, so as to defeat said branch of defendant's motion.

We further find that plaintiff raised triable issues of fact to defeat the branch of defendant's motion seeking summary judgment on its counterclaims, since the documentary evidence indicates that there were several assignments of defendant's account pursuant to which plaintiff became defendant's creditor. "Generally, the FDCPA does not apply to creditors" (Kloth v Citibank [South Dakota] NA, 33 F Supp 2d 115, 119 [1998]; see 15 USC § 1692 [a] [6]; Sydney Realty, LLC v Desiderio, 17 Misc 3d 137[A], 2007 NY Slip Op 52302[U] [App Term, 9th & 10th Jud Dists 2007]), and defendant has not established its entitlement to summary judgment based on any exception to the general rule.

Accordingly, the order, insofar as appealed from, denying defendant's motion to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint, and for summary judgment on the counterclaims is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 22, 2010