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Midland Funding LLC v Tagliafferro (2011 NY Slip Op 21344)

Midland Funding LLC v Tagliafferro (2011 NY Slip Op 21344)

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Published by: DinSFLA on Oct 01, 2011
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Midland Funding LLC v Tagliafferro
2011 NY Slip Op 21344Decided on September 27, 2011Civil Court Of The City Of New York, Richmond CountyStraniere, J.Published byNew York State Law Reporting Bureaupursuant to Judiciary Law §431.This opinion is uncorrected and subject to revision before publication in the printedOfficial Reports.
Decided on September 27, 2011
Civil Court of the City of New York, Richmond CountyMidland Funding LLC, dba IN NEW YORK, AS MIDLANDFUNDING OF DELAWARE LLC Claimant,againstJessica Tagliafferro, Defendant.
15781/11Philip S. Straniere, J."Who are you? Who, who, who, who?"
"But it ain't me , babe. No, no, no, it ain't me babe. It ain't me you're lookin' for babe."
"I am he as you are me and we are all together."
idland Funding LLC v Tagliafferro (2011 NY Slip Op 21344)http://www.courts.state.ny.us/reporter/3dseries/2011/2011_21344.htm1 of 69/30/2011 7:46 PM
Plaintiff, Midland Funding LLC DBA in New York as Midland Funding of Delaware LLC,commenced this action against the defendant, Jessica Tagliaferro, alleging that the defendantdefaulted on the terms of a consumer credit agreement. As set forth below, it is obvious that theplaintiff has taken these classic rock lyrics to heart and created a situation which may be adeceptive business practice.The court has been informed by the clerk of the court that the plaintiff has filed thesummons and complaint in this matter containing the following information:Midland Funding LLC DBA in New York as Midland Funding of Delaware LLCAttorneys for the Plaintiff 100 Church Street, 8th FloorNew York, NY 10007(866)626-5053No attorney's name is specifically designated on the summons and complaint. CPLR§321(a) prohibits self-representation by a corporation and requires a corporation to appear by an[*2]attorney. This requirement extends to limited liability companies as they are legal entitiesdistinct from their members [Michael Reilly Design Inc. v. Houraney 40 AD3d 592 (2007)]. Nowhere in the pleadings is the name of an attorney disclosed.In addition, CPLR §2101(d) provides:Indorsement by attorney. Each paper served or filed shall be indorsed with the name,address and telephone number of the attorney for the party serving or filing the paper,or if the party does not appear by attorney, with the name, address and telephonenumber of the party.The pleadings lack the name of an attorney and are defective.The Rules of the Chief Administrator of the Courts have expanded this statute to requirethat all papers and pleadings be signed. 22 NYCRR §130-1.1-1 provides:Signing of Papers.(a) Signature. Every pleading, written motion, and other paper, served on anotherparty or filed or submitted to the court shall be signed by an attorney,...with the name
idland Funding LLC v Tagliafferro (2011 NY Slip Op 21344)http://www.courts.state.ny.us/reporter/3dseries/2011/2011_21344.htm2 of 69/30/2011 7:46 PM
of the attorney...clearly printed or typed directly below the signature. Absent goodcause shown, the court shall strike any unsigned paper if the omission of the signatureis not corrected promptly after being called to the attention of the attorney....The signing of the pleading becomes a certification by counsel as to the accuracy of theinformation contained in the document [22 NYCRR §130-1.1-a(b)]. Plaintiff's summons andcomplaint lacks a signature and therefore is not a certification as required by the rule. The factthat the complaint has been verified, does not correct this defect.The complaint is verified by a "Scott Morris, Esq." He states in the verification that he is theattorney for the plaintiff but does not set forth beneath his signature any address or otherinformation set forth in the above rule by which the court, or a defendant, might communicatewith him. The attorney registration records lists only one attorney with that name in New York,but he is practicing law at a different address in New York City and is doing so as a member of law firm. Other consumer credit debt collector's list their "in-house" legal counsel or departmentas the attorney of record, but always have the name of an attorney designated on the pleadings.This procedure is not being utilized by the plaintiff. Plaintiff is not even seeking to avail itself of the device literary utilized by Agatha Christie in "And Then There Were None" of using thepseudonym "U.N. Owen" for an "unknown" person, in that story, the host of the weekend party.The summons and complaint lists the plaintiff's residence as 8875 Aero Drive, Suite 200,San Diego, California and the complaint alleges that the plaintiff is a "foreign entity." These factswould permit the complaint to be verified by an attorney as was done here [CPLR§3020(d)(3)].Interestingly a search of the Department of State, Division of Corporations records lists sevenentities registered in New York containing the name "Midland Funding" including both MidlandFunding LLC and Midland Funding of Delaware LLC, the two entities[*3]mentioned in thissummons and complaint. The Division of Corporations records shows both of these entities as an"Active," "Foreign Limited Liability Company" formed in "Delaware." Both names were filedwith the Department of State on the same date, January 22, 2008. The website maintained by theCalifornia Secretary of State discloses only "Midland Funding LLC" as an active entity. Itsaddress is the one recited in the pleadings for the plaintiff.Examination with of the pleadings reveals another more substantial problem beyond thefailure to disclose the name of counsel. The plaintiff is designated as "Midland Funding LLCDBA in New York as Midland Funding of Delaware LLC." DBA is generally thought to be anabbreviation for "doing business as," a term which means that an individual or entity-such as acorporation or limited liability company-is conducting or transacting business in New York 
idland Funding LLC v Tagliafferro (2011 NY Slip Op 21344)http://www.courts.state.ny.us/reporter/3dseries/2011/2011_21344.htm3 of 69/30/2011 7:46 PM

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