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Decided on March 10, 2010
Civil Court of the City of New York, Kings County



Midland Funding LLC DBA in New York As Midland Funding of
Delaware, LLC, Plaintiff,
against
Jean M. Joyce, Defendant.
Jean M. Joyce, Counterclaim, Cross-Claimant,

against
Cohen & Slamowitz, LLP, Household Bank, a/k/a HSBC Card Services
Inc., Midland Credit Management, Inc. and Capital Process Services,
Inc., Midland Funding LLC DBA in New York as Midland Funding of
Delaware, LLC, Counterclaim/Cross-Claim Defendants.




68823/09
Plaintiff: Stephen C. Giametta, Esq.
Cohen & Slamowitz LLP 199 Crossways Park Drive Woodbury, NY 11797-2016
(516) 364-6006 Defendant Jean M. Joyce: Anne Marie Bowler, Esq. Gabay-Rafiy & Bowler LLP 299 Broadway - Suite 706 New York, NY 10007
(212) 941-5025 Defendant HSBC i/s/a Household Bank: Preston L. Zarlock, Esq. Phillips Lytle LLP One HSBC Center - Suite 3400 Buffalo, NY 14203-2887
(716) 847-8400 Defendant Capital Process Servers:Capital Process Servers 55 Post Avenue - Suite 202 Westbury, NY 11590 Alice Fisher Rubin, J.
Plaintiff's Motion to Strike Non-Party Defendant's Answer and Dismiss her Counterclaims and

Cross-Claims is granted.
Background
Plaintiff's counsel commenced this action to collect a debt owed to Plaintiff Midland Funding ["MDF"] by Defendant Jean M. Joyce with an address of 100 8th Avenue, Apt. 4E, Brooklyn, NY 11215. On June 3, 2009, counsel for Plaintiff MDF mailed a validation notice to the Defendant at the above 8th Avenue address in full compliance with the Fair Debt Collection Practices Act (15 USC Section 1692(g)). [Plaintiff 1 & 2, Exhibit "A"] On June 17, 2009, 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. [Plaintiff 1 & 2]
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. [Plaintiff 1 & 2, Exhibit "B"]
On July 24, 2009, Plaintiff's counsel received a letter from the counsel to Ms. Joyce, stating that they were proceeding against the wrong individual. However, no pedigree information was provided, confirming Ms. Joyce's identity. [Plaintiff 1 & 2, Exhibit "C"]
On August 3, 2009, Plaintiff's counsel faxed a letter to Ms. Joyce's counsel, advising that [*2]its client ["JMJ"] was not the individual against whom Plaintiff MDF was proceeding. Consequently, Ms. Joyce was not responsible for the debt. Further, Plaintiff's counsel would not take any efforts to collect the debt from her. [Plaintiff 1 & 2, Exhibit "D"]
Despite this assurance, Ms. Joyce's counsel faxed a letter to Plaintiff's counsel on August 7, 2009, advising that Ms. Joyce was planning on filing an Answer and Counterclaims/Cross-
Claims. Her counsel invited a telephone call from Plaintiff's counsel to discuss the matter. [Plaintiff 1 & 2, Exhibit "E"]
Upon receipt of the August 7, 2009 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. On August 17, 2009, 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. Plaintiff's counsel returned the call and left a second voice mail message. [Plaintiff 1 & 2]
On August 18, 2009, Plaintiff's counsel received an Answer and Counterclaims/Cross-Claims from Ms. Joyce's counsel. [Plaintiff 1 & 2, Exhibit "F"] 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 1 & 2]
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. See CPLR Section 3019.
Plaintiff's counsel points out that Ms. Joyce's Counterclaims/Cross-Claims include two separate class actions, pursuant to CPLR Sections 901 and 902, 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 [15 USC Section 1692 et seq. "FDCPA"] as well as claims for violations of New York General Business Law Sections 349 and 304-a, 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, because she was improperly served, since she is not the Defendant in question. [Defendant 3 & 4] 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. [Defendant 3 & 4] Her building has a locked front entrance and access to her apartment door is only available to authorized guests. [Defendant 3 & 4] Thus, the documents taped to her door were visible to her [*3]landlord, neighbors, guests and any other persons, who entered the building. [Defendant 3 & 4]
Non-Party Status of Ms. Joyce
Upon review of the parties' papers, this 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. [Plaintiff 1 & 2, Exhibit "D"] Her Social Security Number and Date of Birth are not the same as the Defendant in question. [Plaintiff 1 & 2] 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. [Plaintiff 1 & 2] Thus, Ms. Joyce was served. [Plaintiff 1 & 2] 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. [Plaintiff 1 & 2, Exh. "D"] Consequently, Ms. Joyce is a Non-Party to this action.
Ms. Joyce's Answer
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 by this action, because the debt in question does not even appear on her credit report. [Defendant 3 & 4, Exhibit "H", Para. 122 & 127] According to Plaintiff's counsel, the credit report of the true Defendant in question does show the debt at issue. [Plaintiff 1 & 2]
This Court concedes that a non-party might be permitted to appear if such party would be affected 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 of Appeals held in Castaways Motel v. Schuyler, 24 NY2d 120, 299 NYS2d 148 (NY 1969) that non-parties were non-dispensable, when the determination of the Court will adversely affect their rights. The Appellate Division reasoned in Auerbach v. Bennett, 64 AD2d 98, 408 NYS2d 83 (2nd Dept., 1978) that the ultimate question in making such a determination is whether the non-party may be bound by the judgment if he does not take affirmative action in the litigation to protect his rights.
This 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. [*4]
This Court 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, this Court finds that Ms. Joyce has no reason to assert an Answer, because she is not affected 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.
Ms. Joyce's Counterclaims/Cross-Claims
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. [See Plaintiff 1 & 2, Exhibit "G"] Thus, the third parties are a nullity. [Plaintiff 1 & 2, Exhibit "G"] Since Ms. Joyce was required to have the Court so 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. See Cherney v. Pilevsky, 178 AD2d 263, 577 NYS2d 61 (1st Dept., 1991); CPLR 3019(a). Since Ms. Joyce admits that she is a non-party in this action, her Counterclaims/Cross-Claims are dismissed. See Cherney v. Pilevsky, supra ; CPLR 3019(a). 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.
Proper Forum for Ms. Joyce's Class Actions
This Court declines to rule on Ms. Joyce's class actions, because they are part of her Counterclaims/Cross-Claims, which have been dismissed. However, if it were to do so, it finds that this Court is not the proper forum for a class action.
CPLR Section 901(a) states that a court's determination regarding whether to certify a class action is discretionary. The burden of proof is with the plaintiff to show that the pre-requisites are met. Those factors include: a) numerosity of parties; b) predominance of issue; c) typicality requirement; d) adequacy of the named plaintiff to represent the class; and e) whether the class action is a superior form of adjudication. [*5]
CPLR Section 902(4) requires consideration of the desirability or undesirability of concentrating the litigation of the claim in the particular forum. Thus, the Court needs to examine the time required to certify, ultimately resolve and apportion and distribute damages in a class action as well as the type of oversight required by the Court hearing such a claim. See Alix v. Wal-Mart Stores, Inc., 16 Misc 3d 844, 838 NYS2d 885 (NY Sup. 2007).
Based upon pre-requisites, pursuant to CPLR Sections 901(a) and 902(4), this Court finds that it is not the proper forum for consumer class action on behalf of unknown consumers, who may have been subject to unfair and deceptive business and collection practices in violation of the Fair Debt Collection Practices Act [15 USC Section 1692 et seq. "FDCPA"] as well as claims for violations of New York General Business Law Sections 349 and 304-a, fraud and civil trespass. Such a class action lawsuit would tax the time and resources of this Court. Moreover, there is no prejudice to Ms. Joyce if her class actions are not permitted to proceed in this particular forum. Since the predominant claims pertain to violations of the Fair Debt Collection Practices Act [15 USC Section 1692 et seq. "FDCPA"], a more proper place may be in U.S. District Court, which regularly handles these matters.
According, Plaintiff's motion is hereby granted, Defendant's Answer is stricken and her Counterclaims/Cross-Claims are dismissed.
This constitutes the decision and order of this Court.
Court Attorney to notify.
Dated: Brooklyn, New York
March 10, 2010
Midland Funding LLC DBA in New York as Midland Funding of Delaware, LLC
v. Jean M. Joyce Kings County Index Number 68823/09

ALICE FISHER RUBIN, J.C.C.

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