“Defendant first argues that plaintiffs’ suit was barred, relying on a provision of the policy which requires ‘the insured’ to file a proof of loss within 60 days of the loss and another provision barring suit ‘unless all the requirements of this policy shall have been complied with’. Plaintiffs respond that the contract of sale clause is expressly subject to ‘any <mask> clause forming a part’ of the policy, and that under the ‘mortgagee interests and obligations’ provision quoted above, the mortgagee is required to give proof of loss only upon notice by the insurer. No such notice was given in the instant case.


The executors of the deceased husband assert a right to be paid from the estate of deceased a sum slightly less than $1,500 which is stipulated to be the amount actually incurred and expended for medical, hospital and nursing expenses during the last illness of deceased’s husband. By paragraph tenth of her will she provides: “ If during the lifetime of my beloved husband Wilford Lincoln Rosenstein, my beloved husband shall become ill and require medical attention and care, then my trustees, if the income given to my husband under the trust estate is not sufficient to take care of the medical expenses incurred as well as to maintain and support him, that the trustees shall obtain a <mask> in an amount not to exceed Fifteen thousand ($15,000) Dollars upon either and/or both premises 130 and 138 West 74th Street, in the Borough of Manhattan, City of New York, and the amount received from such mortgage shall be part of the corpus of the trust estate created in this Will for the benefit of my beloved husband, Wilford Lincoln Rosenstein, and the income thereof shall be used and applied in *782payment of any medical expenses incurred for .him, and if the income derived from said mortgage money does not amount to twenty-five hundred ($2500) Dollars during any one year, then the trustees shall apply the difference to make up Twenty-five hundred ($2500) Dollars from the principal of the corpus of the trust fund.”


Neither plaintiff nor Langer dispute the facts as presented by defendant. They argue that defendant should have sought court relief sooner, as he had in the past, and that his attorney should have reached out to plaintiff’s attorneys rather than relying on plaintiff’s representative. Plaintiff acknowledges that defendant has taken all steps required to complete the workout and the reinstatement of the <mask>.


Plaintiff Balsam is not a “Lender,” pursuant to the statutory definition in Banking Law § 6-1 (1). According to Banking Law § 6-1 (1) (i), “ ‘Lender’ means a <mask> banker as defined in paragraph (f) of subdivision one of section five hundred ninety of this chapter or an exempt organization as defined in paragraph (e) of subdivision one of section five hundred ninety *365of this chapter.” Banking Law § 590 (1) (f) defines a “mortgage banker” as “a person or entity who or which is licensed pursuant to section five hundred ninety-one of this chapter to engage in the business of making mortgage loans in this state.” However, plaintiff Balsam, who made only one mortgage loan in his life, the subject loan to Patrick and Zenda, is exempt from being licensed as a “mortgage banker,” pursuant to Banking Law § 590 (2), which states:


Finally, it is also concluded that the plaintiffs have not made a case against the defendant Inter-County Title Guaranty & <mask> Company, and that the complaint is to be dismissed as against it. The title policy of said company on the face of it purports only to insure against defects of title affecting the premises described in Schedule A attached thereto and made a part thereof. The above-quoted provision in plaintiffs’ deed referring to use of the springs and the right to lay and maintain pipes therefrom is not included as a part of the description of the lands as set forth in Schedule A. Said schedule merely describes plaintiffs’ lot by setting out the boundaries thereof and there is no reference whatever in the said schedule or in the policy to the easement claimed by plaintiffs. And said policy, by clause 10 thereof, expressly provides that, “ No rights of the insured in any premises beyond the lines of the premises *697as described in Schedule A * * * are insured by this policy unless such rights are specifically expressed as being insured ”.


The defendants urge, too, that Fennelly may have forged some part of the assignment to the plaintiff and that the Flails had knowledge that the Anthonys desired to pay off their <mask> and had furnished Fennelly with the money for that purpose. There is no proof of any forging and whatever the Halls may have done or known cannot be attributed to this plaintiff, or be of any value now to the Anthonys,


The learned justice in his opinion said on that subject: “The only remaining difficulty is as to bringing in the United States. That seems, however, to have been settled by the order of the District Court, and the willingness expressed by the United States district attorney to submit to the jurisdiction. The motion should, therefore, be granted upon the money being brought into court and upon the United States district attorney appearing for the United States herein, and stipulating that the United States submits to the jurisdiction and consents that the title to the <mask> debt may be determined herein upon the merits, and that it will abide by the judgment.”


In the <mask> foreclosure action, a stipulation was entered by the parties, providing for entry of a judgment of foreclosure on and after April 1, 1964, and the withdrawal of defendant’s answer, providing defendant made payments of interest monthly on the unpaid principal of the mortgage. This stipulation contained further conditions which were to become effective upon the then pending condemnation of the property. Since then this condemnation has been indefinitely postponed, and it appears that defendant has made default in payment of taxes, sewer and meter charges, and in maintaining the necessary insurance upon the mortgaged premises, all as required under the mortgage. Defendant claims that as the stipulation did not require these payments to be made, it is under no obligations with respect thereto. Plaintiffs claim that it is clear that what was intended by the stipulation was that all terms and conditions of the mortgage survive, save that defendant was given additional time to pay the principal and the accrued interest. It is palpably incredible that the parties intended, by the stipulation to dispense with defendant’s compliance with all other terms of the mortgage, and readily apparent that plaintiffs’ interpretation of the agreement must prevail, and was that intended by the parties.


It is a sufficient delivery to constitute a valid gift ■Lo a married woman of household furniture in the possession and use of herself and family, where one who has just purchased under a chattel <mask> made by her husband, pointing out certain articles to the wife, says to her: “ I give you these and all the property I have purchased this day.” Allen v. Cowan, 23 N. Y. 502.


The extreme importance of a careful analysis of the language of the particular gift is emphasized by the diverse results attained in Gardner v. Printup (2 Barb. 83) and in Beck v. McGillis (9 id. 35). In the former, in which the bequest was of “ the proceeds of a bond and <mask> I hold against Aaron Briggs,” it was held that another bond and mortgage received by the testator upon a resale of the securing property after it had been retaken by him because of default in compliance with the terms of the mortgage, would be delivered to the legatee in satisfaction of the specific gift. In the latter, the gift was of a specified bond and mortgage made by one Buel. The testator foreclosed the mortgage and the property was sold to another, who gave the testator a new purchase-money mortgage. In determining that the specific legatee was not entitled to receive the new mortgage, and that the legacy had *278wholly abated, the yourt said (at p. 58): “ The bequest is of that peculiar debt, and not of a sum of money to be paid out of that debt. Had the testator received payments upon the bond and mortgage, such payments would have constituted an ademption pro tanto. The balance, if he had still retained the bond and mortgage, when he died, would have passed to the legatee. But the debt bequeathed was, in fact, fully paid to the testator. The bond and mortgage were satisfied by the foreclosure sale. The thing bequeathed was gone, and the legacy was adeemed. The fact that the same money which satisfied Buel’s debt has been invested in a new security upon the same property, cannot operate to save the legacy. Whether the testator was paid in money or a new security, or whether such payment was invested in another bond and mortgage, upon the same or other premises, cannot affect the right of the parties. In either case, the thing described in the will, and for which the legacy calls, no longer exists. The legacy is therefore adeemed.”


*34In a separate transaction, plaintiff sold defendant certain real property known as 153-24 88th Avenue, Jamaica, New York. Plaintiff loaned defendant the money with which to purchase this property and took a <mask> on the property. It appeared that defendant did not or could not pay for this property. Plaintiff and defendant then agreed that plaintiff would take back the property in satisfaction of the mortgage, with defendant agreeing to pay plaintiff $545 for real estate taxes which had apparently accrued on the property and were unpaid. Defendant signed the following statement which was written upon the bottom of the agreement dated June 9,1976: “July 25,1977 — In consideration of Bernard Feldbau releasing his lein (sic) of mtge. on premises 153-24 88th Ave I agree to pay an additional sum of $545.00 due and payable in addition to the above sum.”


Further, it appears that petitioner has conveyed a purchase-money <mask> to the predecessor landlord at the time title was transferred as evidenced by a mortgage agreement dated March 4, 1987, annexed as exhibit A of respondent’s motion papers, which respondent mistakenly identified as the deed of the property. Since petitioner owes a debt to its predecessor, it, in effect, became a garnishee and respondent may seek to enforce the judgment against petitioner as such.


These transactions were in the ordinary course of business, and the additional $75,000 was fair consideration for that portion of the <mask>. Fair consideration has been defined as that "which is honest or free from suspicion, or one actually valuable, but not necessarily adequate or a full equivalent” and includes payment of an antecedent debt (Black’s Law Dictionary 479 [2d ed 1910], and cases cited therein). We need not evaluate with hindsight but merely determine whether what was received was of value and that the transaction was bona fide. Since the existing debt of $200,000 was closed out and a new arrangement entered into, it can be said that an antecedent debt was paid. However, the reality is that payment was postponed via a mutually acceptable schedule of installments. The decedent was and is still on the hook to guarantee payment of the $200,000 loaned to Empire Cruise Lines, Inc. and the $20,000 to Empire Resorts, Inc. The mortgages gave the corporations time to repay these loans with their earnings and postponed the decedent’s repayment on their behalf. This is fair consideration. Nothing was lost and gain was possible.


*720The court cannot spell out such acknowledgment and promise from the mere statement in the deed and contract that title would be taken subject to mortgages of record without specifically mentioning the <mask> involved in this action and unconditionally promising to pay it. Such a conveyance cannot have the effect of assuming or reviving a mortgage on real property already outlawed by the Statute of Limitations (Civ. Prac. Act, § 47-a).


It is clear that U. M. & M. acquired these instruments, regular and complete on their face, in the ordinary course of its business, for value, and without notice of the prior <mask> or knowledge of any infirmity or defect relating to the transaction. Its good faith is therefore established. Indeed, its good faith is less vulnerable to attack than that of Pettibone Mulliken, which purportedly secured the execution of a floor-plan mortgage more than 5 months after sale and delivery and about 10 days before the execution of this subsequent mortgage, and proceeded to make arrangements to secure repossession promptly upon default date 30 days later.


2 Crooked Creek, LLC (2CC) and Russian Ferro Alloys, Inc. (RFA) filed an action in the Court of Claims against the Cass County Treasurer, seeking to recover monetary damages under MCL 211.78l of the General Property Tax Act (the GPTA), MCL 211.1 et seq., in connection with defendant’s foreclosure of certain property. In 2010, 2CC purchased property for development in Cass County. 2CC failed to pay the 2011 real-property taxes and, in 2013, forfeited the property to defendant. From January through May 2013, defendant’s agent, Title Check, LLC (Title Check), mailed via first-class and certified mail a series of notices to the address listed in the deed. These notices apprised 2CC of the unpaid property taxes, forfeiture, and possibility of foreclosure. The certified mail was returned as “Unclaimed—Unable to Forward,” but the first-class mail was not returned. Meanwhile, 2CC constructed a home on the property, obtaining a <mask> for the construction from RFA. On June 18, 2013, Katelin MaKay, a land examiner working for Title Check, visited the property; determined it to be occupied; and being unable to personally meet with any occupant, posted notice of the show-cause hearing and judicial-foreclosure hearing on a window next to the front door of the newly constructed home. Title Check continued its notice efforts through the rest of 2013 and into 2014, mailing various notices as well as publishing notice in a local newspaper for three consecutive weeks. After no one appeared on 2CC’s behalf at the January 15, 2014 show-cause hearing or the February 18, 2014 judicial-foreclosure hearing, the Cass Circuit Court, Michael E. Dodge, J., entered the judgment of foreclosure. The property was not redeemed by the March 31, 2014 deadline, and fee simple title vested with defendant. 2CC learned of the foreclosure a few weeks later. In July 2014, 2CC moved to set aside the foreclosure judgment on due-process grounds. These efforts failed, however, because the circuit court concluded that defendant’s combined efforts of mailing, posting, and publishing notice under the GPTA provided 2CC with notice sufficient to satisfy the requirements of due process. 2CC appealed. In an unpublished per curiam opinion issued on March 8, 2016 (Docket No. 324519), the Court of Appeals, METER, P.J., and BOONSTRA and RIORDAN, JJ., affirmed. At the same time 2CC moved to set aside the foreclosure judgment, it filed a separate action in the Court of Claims for monetary damages under MCL 211.78l(1), alleging that it had not received any notice required under the GPTA. Defendant moved for summary disposition under MCR 2.116(C)(7). The Court of Claims, MICHAEL J. TALBOT, J., denied the motion and held a bench trial. At the close of 2CC’s proofs, the court granted an involuntary dismissal in favor of defendant, holding, in relevant part, that 2CC had received at least constructive notice of the foreclosure proceedings when MaKay posted notice on the home at a time when 2CC “was exercising dominion and control over the property by contracting for the construction of a home on the property.” 2CC appealed as of right, and the Court of Appeals, SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ., affirmed. 329 Mich App 22 (2019). 2CC sought leave to appeal in the Supreme Court, and the Supreme Court ordered oral argument on the application limited to 2CC’s claim for monetary damages under MCL 211.78l(1). 505 Mich 865 (2019).


There is still another point raised by the committee, which is that even if the <mask> is held to be not outlawed, the *80instalments of interest 'which accrued over six years ago must be regarded as barred by the statute. I think, upon the authority of the Quackenbush v. Mapes case, supra, I must reward the industry of this committee in his client’s behalf by holding with him, -that all the instalments of interest which accrued upon the mortgage in suit more that six years prior to the commencement of this action are barred by the statute.


On October 20, 1970, a referee was appointed to compute the amount due on the second <mask>. Thereafter, on August 3, 1971, the judgment of foreclosure and sale was entered and it provided, inter alia, that the notice of sale contain a statement “ that the property is sold subject to a first mortgage in the sum of $23,183.53 and a junior mortgage held by Allen Lempert in the sum of $7,500.00.” It may be here noted that the notice of sale did not contain the quoted statement but there was this reference: “ For more complete details see filed judgment Index No. 1034/70 ”. Further, from this court’s examination of the voluminous filed papers it does not appear that the judgment of foreclosure and sale was served upon the attorney for Diaz. On November 12, 1971, the property was sold to plaintiff, the second mortgagee, for the sum of $12,000:


As the houses neared completion Niebuhr made attempts to effect sales, and by October, 1878, he had sold eight of them with the land upon which each stood, respectively. Among them was one which was sold to the defendants, Woodruff, Conklin & Bayer, by deed recorded August 23, 1878, and upon conditions which will be specially noticed hereafter. As to the other seven, each house and lot was sold subject to a first <mask> of $4,000, held by the New York Life Insurance Company, and the purchaser in each case, as a part of the consideration paid, executed a second mortgage for $1,770, which was turned over to Kendall. Upon each of the three houses and lots remaining unsold, Niebuhr executed and delivered to Kendall a second mortgage for the same amount.


The old case of Colt v. Woollaston (2 P. Wms., 154), is an example of this character. The plaintiff sought by his bill to be repaid two sums of money advanced to the defendants as managers and projectors of a bubble called the Land Security and Oil Patent, for the purpose of extracting oil out of radishes. There were two plaintiffs, and they purchased six shares each. The company was to have a capital of £100,000. The shares to be 5000, at £20 each. Woollaston bought an estate for £31,800, which was under <mask> for £28,000, and he was to be paid £57,200 out of the fund. It was represented by the defendants to be a most advantageous project. The master of the rolls said: “ This is an imposition, to propose the surplus of the value of an estate (which cost but £31,800), after £85,000 charged upon it— more than double its value—as a security to the contributors who laid out their money upon this project; it is giving them moonshine instead of any thing real.


But, if we assume that the <mask> to the plaintiff gave him ' the title to the horses after June 1, 1875, even in Canada, yet we find that the horses were in the possession of De Lisle, as proprie*84tor; that is, as one claiming to own them. And he was a trader, dealing in horses. Bromly bought from him in good faith. And, by article 1489, the plaintiff could not reclaim the horses, without paying Bromly the price he had paid.


And the <mask> here, in plain language, provides that a receiver may be appointed without notice: "16. That Mortgagee, in any action to foreclose this Mortgage, shall be entitled, *831without notice or demand and without regard to the adequacy of any security for the indebtedness secured hereby or the solvency or insolvency of any person liable for the payment thereof, to the appointment of a receiver of the rents, issues and profits of the Mortgaged Premises” (cf. Mandel v Nero, 52 Misc 2d 604, where an ex parte order was upheld although the mortgage merely provided for the appointment of a receiver, omitting the words, "without notice”). In light of the language of the mortgage agreement, the ex parte order is valid under the New York law applicable to this case.


Appellant James Ogle is the owner of a building which has within it a real estate office and two apartments. As security for a loan of $170,000, Ogle gave petitioner a <mask> on the property. As further security for the loan, Ogle gave petitioner an "Assignment of Leases and Rents.” By the terms of this instrument, Ogle assigned to petitioner "all of the rents, revenue, issues and profits” and "also all leases, sub-leases and rental agreements now hereafter affecting said premises.” The assignment was to be held by petitioner but was not to be "applied” except upon a default under the mortgage. The assignment further provided that petitioner is granted "full power and authority as principal” to, inter alla, take possession of the premises from persons liable for the rents and to institute legal proceedings, including summary proceedings for the removal of tenants.


The same may be said of the conveyance to Hannah, and of her conveyance to Conway. Conway, then, who was the owner of the land when the statutory foreclosure was commenced, was bound to pay the <mask>, and the mortgage was a lien on the premises in his hands. O’Brien, the plaintiff, was not then in any way liable as guarantor, or otherwise, on the bond, and he had no interest in the land. He was not the original obligor, and he had assumed no liability. When, therefore, he took a conveyance from Conway he stood in no better position than Conway stood in respect to the premises.


Eor another reason we think the order under review should be .affirmed. It appears by the case that the trial court, at the request of the plaintiff’s counsel, charged the jury that the burden of proof was on the defendant to establish the good faith of the <mask>; which was excepted to. Also, that the defendant’s counsel asked the court to charge that the burden of proof was on the plaintiff to establish the alleged fraud, which the court declined, and the defendant excepted. Immediately after the refusal above stated .the court said: “ I have instructed the jury sufficiently in reference to that. I give you the benefit of possession of the property to «tart with, in charging that the jury must find a better right to the property in the creditors than the defendant, before the plaintiff can recover.” In view of the evidence, we think the charge and refusal were erroneous, and the error was not cured by the reference made by the judge to what he had previously charged. The evidence showed that the mortgage was duly filed. There was evidence tending to show that it was given for a good and sufficient consideration, and also that the subsequent possession of Chase, one of the mortgagors, was by the authority of the defendant, as his agent for that purpose, though upon the latter points the testimony was conflicting, and the judge submitted it to the jury to find whether the defendant put Chase in possession in good faith or as a mere cover. Under those *634circumstances the onus of showing good faith was not upon the-defendant, unless the jury should find that there was no change of possession. But the rulings of the court put that burden upon the-defendant, irrespective of the question whether the possession of the property was changed. That was error prejudicial to the-defendant.


By letter, dated November 17, 1954, plaintiffs’ attorney confirmed an adjournment of two weeks “ under the contract for the purposes of the FHA <mask> commitment.” He stated, also, that the F. H. A. inspector who had been shown the premises had indicated that they were acceptable for mortgage purposes. The letter concluded: “Needless to say if you require more time it will be forthcoming ’’. On December 14, 1954, the attorneys exchanged letters confirming an arrangement by which the defendants were permitted to move certain office furniture into the garage of the premises pending the closing. The defendants gave the plaintiffs a check for $200, the proceeds of which were to be credited to the purchase price if title closed as planned; otherwise, the money was to be returned less the necessary cost to restore the garage to its original condition and remove the furniture therefrom and place it in a public warehouse, if not removed by defendants. In plaintiffs’ letter of December 14,1954, acknowledging receipt of the check for $200, it was, in part, stated: “In fairness to my clients who have waited long and patiently in this deal, please *825arrange to close title before Christmas, 1954. ’’ Receipt of that letter was acknowledged by the attorney for the defendants on December 18, 1954, with the assurance that ‘‘ we are doing everything within our power to close this matter by Christmas.”


I think, therefore, it is both just and equitable that this same course should be pursued, and that the estate of Douglas Sloane should be adjudged the owner of the bond and <mask> which was assigned to the .administratrix in this proceeding as against the property in Rye; but, as she has already satisfied it, that the *184same, together with the interest paid thereon, should be deducted from her share of said estate.


It was objected that the transfer by Samuel Blaisdell, Jr., & Co. to the plaintiff was not well proved, because executed by one of the firm only. The instrument purported to be a sale and transfer by the firm. It was so stated in the body of the instrument. But for anything appearing to the contrary, the sale and transfer by one of the firm of firm property, not being real property, was good and effectual to carry title to the vendee. It was also objected that the <mask>, under which the plaintiff claimed, was not well proved. The paper put in evidence was certified in due form of law by the town clerk, in whose office it was filed. It purported to be a copy of the mortgage, and was with a certificate of acknowledgment of its due execution, filed in the town clerk’s office as a copy. It was a paper authorized by law to be there filed as a record. The certificate of the town clerk, however, went only to the filing of the paper. (Code Civil Pro., § 934.) It did not prove the existence and execution of the original. (Sunderlin v. Wyman, 10 Hun, 493; Fellows v. Van Hyring, 23 How., 230; Bissell v. Pearce, 28 N. Y., 252.) The admission here in evidence of the mortgage, against objection and exception, without such proof, was error, because of which there must be a new trial.


Two suits for an injunction have been instituted against Seaboard and Douglas — one by Canadair and the other by Irving Trust Company. There are four basic agreements between Canadair and Irving Trust on one side and Seaboard on the other, which are the bases of these suits. Essentially, the agreements constitute chattel <mask> and equipment trust agreements. It is charged that by reason of its agreement with Douglas, Seaboard has violated various restrictive provisions of its agreements with Canadair and Irving Trust. These restrictive provisions are identical in the agreements of both plaintiffs. By these motions temporary injunctive relief is sought against both defendants, restraining the continuance of the alleged violations.


*990The action is brought upon a bond secured by a <mask> covering real estate situated in the State of New Jersey. The mortgage was foreclosed under a decree entered in a court of that State, but it appears from the complaint that the foreclosure sale left a deficiency of $2,728.45. By this action it is sought to recover such deficiency.


The defendants rely on these and the other cases that involve slightly different issues to support their assertion that the "majority" of federal courts have "excluded <mask> servicing from the definition of debt collectors." We are unconvinced of this proposition. A number of other federal authorities have concluded that mortgage servicers and/or mortgage lenders can and do fall within the definition of "debt collector" under the Rosenthal Act. (See, e.g., *454Sau King Chan , supra , 2017 WL 1807947, at *3 [" 'courts have reasoned that a mortgage servicer may be a debt collector under the Rosenthal Act' "]; Sudhir v. PHH Mortgage Corporation (N.D.Cal., Jan. 19, 2017, No. C 16-06088 WHA) 2017 WL 219681, at *2-3 ( Sudhir ) [Rosenthal Act's definition of "debt collector" is not "as restrictive as its counterpart in the FDCPA," and concluding that a mortgage servicing company may be a debt collector under the Rosenthal Act]; Castillo v. Nationstar Mortgage LLC (N.D.Cal., Nov. 22, 2016, No. 15-CV-01743-BLF) 2016 WL 6873526, at *5 [plaintiffs had established that Nationstar was a " 'debt collector' under the [Rosenthal Act]" by showing that Nationstar "regularly billed them and collected payments on their mortgage loan debt"]; Cavender v. Wells Fargo Bank (N.D.Cal., Sept. 6, 2016, No. 16-CV-00703-KAW) 2016 WL 4608234, at *8 [in the course of dismissing plaintiff's Rosenthal Act claim on different grounds, acknowledging that " 'a mortgage servicer may be a "debt collector" under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act' "]; Wilkins v. Bank of America, N.A . (E.D.Cal., Aug. 19, 2016, No. 2:15-CV-02341-KJM-EFB) 2016 WL 5940082, at *7 ["A mortgage servicer and an original lender may be 'debt collector' under the Rosenthal Act"]; Reyes v. Wells Fargo Bank, N.A . (N.D.Cal. Jan. 3, 2011, No. C-10-01667 JCS) 2011 WL 30759, at *19 ["[a]s a number of courts have recognized, the definition of 'debt collector' is broader under the Rosenthal Act than it is under the FDCPA," and "a mortgage servicer may be a 'debt collector' under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act"]; Walters v. Fidelity Mortg. of CA (E.D.Cal. 2010) 730 F.Supp.2d 1185, 1203 *303[mortgage servicer that regularly billed plaintiff and collected payments on her mortgage debt was a "debt collector" under the Rosenthal Act]; Herrera v. LCS Fin. Services Corp ., (N.D.Cal., Dec. 22, 2009, No. C09-02843 TEH) 2009 WL 5062192, at *2.)


Second, while the enforcement of the September 18, 2012 judgment and warrant of eviction are stayed pending appeal by respondent, respondent shall post an undertaking, in one lump sum, in the amount of $135,683.88. This sum is comprised of the following: the money judgment of $49,837.93; <mask>, taxes and insurance for 12 months of $52,642.69; incidental operating costs associated with maintenance for 12 months of $12,000; diminution in value of the personal property used for the business but not attached to the real property for 12 months of $10,000; and 9% per annum ($124,480.62 plus 9%).


Fraudulent practice in <mask> transactions, injurious both to consumers and the general business community, is a matter not of merely private concern, subject to the action or inaction of litigants, but is one of vast public importance. That the defenses alleged in the petition were not raised by defaulting consumers will not estop the court, faced with an arguably pervasive pattern of illegality and fraud, from itself raising these issues in the legitimate exercise of its inalienable power to supervise its own processes (see Matter of Vigilant Protective Systems, 333 F Supp 1029; All-State Credit Corp. v 669 Defendants, 61 Misc 2d 677). The statute being, in essence, declaratory of the common law, there is no impediment to its application to judgments entered prior to its effective date (Sutherland, Statutes and Statutory Construction [4th ed], § 26.07; see, also, Givens, Practice Commentary, McKinney’s Cons Laws of NY, Book 29, Judiciary Law, § 217-a, 1975-1976 Cumulative Annual Pocket Part, pp 79-80).


The discussion of credit terms on February 7, 1987 was limited to the amount to be financed. No further discussion was had until February 21, 1987 when defendant tendered delivery of the vehicle. Without examining the auto, plaintiff asked for and was given the retail installment contract which was to be assigned to Marine Midland Bank or Marine Midland <mask> Corporation. The agreement provided for the financing of $5,285.02 at 10.5% interest annually to be paid in 48 equal monthly installments.


The Rosenthal Act is silent with respect to whether it applies to persons or entities attempting to collect mortgage debt; the definitions of "debt collector," "consumer debt," and "<mask> transaction" make no reference to mortgage lenders and/or servicers or to mortgage debt. Given that mortgage debt is neither expressly included nor excluded from the definition of "consumer debt," and that a mortgage transaction is neither expressly included nor excluded from the definition of "consumer credit transaction," we look to the words of the statute to determine whether they can be understood to either include or exclude from the statute's purview mortgage debt or mortgage lenders and/or servicers, keeping in mind that the Rosenthal Act " 'should be interpreted broadly in order to effectuate its purpose.' " ( Komarova , supra , 175 Cal.App.4th at p. 340, 95 Cal.Rptr.3d 880.)


Defendant’s argument that the complaint should be dismissed based upon plaintiffs failure to comply with TILA’s notice requirement is also without merit. “TILA applies only to <mask> transactions and, therefore, does not apply to credit extended for business, commercial, or agricultural purposes” (Mauro v Countrywide Home Loans, Inc., 727 F Supp 2d 145, 153 [ED NY 2010] [internal quotation marks omitted]). Here, defendant has failed to demonstrate that the underlying loan constituted a consumer credit transaction and, as previously set forth, .the documentation submitted by plaintiff indicates that the loan was for commercial purposes.


We also reject defendants' contention that Veros cannot be liable for the attorney fees, costs and prejudgment interest awarded Medina as a result of it being merely the "holder" of the RISC at issue in this case. As relevant to this issue, the RISC provided in all capital letters: "Notice: Any holder [i.e., Veros] of this <mask> contract is subject to all *577claims and defenses which the debtor [i.e., Medina] could assert against the seller of goods or services [i.e., SCCC] obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder."


§ 1681(b). Among other things, it restricts the circumstances in which consumer reporting agencies may disclose <mask> reports, id. § 1681b; specifies what information may be contained in those reports, id. § 1681c; and imposes civil, administrative, and sometimes criminal liabil- ity for failure to comply with its requirements, id. §§ 1681n–1681s. In 1996, Congress amended FCRA to add a new basis for disclosure of consumer credit information. See Intelligence Authorization Act for Fiscal Year 1996, Pub. L. No. 104-93, sec. 601(a), § 624, 109 Stat. 961, 974 (codified at 15 U.S.C. § 1681u). The new provision, now FCRA section 626, authorizes the FBI to present a consumer credit reporting agency with a written request, signed by the Director of the FBI or his designee, certifying that the FBI seeks certain information “for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 15 U.S.C. § 1681u(a). Upon receipt of such a National Security Letter (“NSL”), a credit agency must disclose to the FBI the “names and addresses of all financial institutions . . . at which a consumer maintains or has maintained an account,” id., and “identifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment,” id. § 1681u(b). Section 626(f ) bars further dissemination of this information except in limited circumstances. It provides: The Federal Bureau of Investigation may not disseminate infor- mation obtained pursuant to this section outside of the Federal Bu- reau of Investigation, except to other Federal agencies as may be necessary for the approval or conduct of a foreign counterintelli- gence investigation, or, where the information concerns a person subject to the Uniform Code of Military Justice, to appropriate in- vestigative authorities within the military department concerned as may be necessary for the conduct of a joint foreign counterintelli- gence investigation. Id. § 1681u(f ).* FCRA makes any violation of this section by a federal agency or officer grounds for civil damages or disciplinary action. Id. § 1681u(i)–( j).


The complaint is verified by a “Scott Morris, Esq.” He states in the verification that he is the attorney for the plaintiff but does not set forth beneath his signature any address or other information set forth in the above rule by which the court, or a defendant, might communicate with him. The attorney registration records list 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 <mask> debt collectors list their “in-house” legal counsel or department as 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 the pseudonym “U.N. Owen” for an “unknown” person, in that story, the host of the weekend party.


While this definition on its face appears broad enough to encompass the services in question, this court has serious doubts as to whether the rendition of medical services by a licensed physician constitutes a <mask> transaction as defined by the CCA. (See, Ratner v Drucker, 79 Misc 2d 216 [Civ Ct 1974] [consumer credit transaction as defined by CCA 2101 (g) was not meant to apply to members of the medical profession who traditionally do not extend credit to patients as a business or medical practice]; cf., State of New York v Monteleone, 138 AD2d 821 [3d Dept 1988].)


. Such a modification would be in the same vein as CPLR 503 (f) and CPLR 513. The former requires <mask> transactions to be brought either in the county where the defendant resides or the county where the transaction took place. The latter authorizes the clerk to refuse to accept a consumer credit transaction summons for filing if it appears that venue is improper in that county.


There is no rationale to a result in which a consumer who finances a purchase from Sears Roebuck is treated more advantageously than one who finances the same purchase from Chemical Bank; or the converse, that Chemical Bank should be treated more advantageously than Sears Roebuck. There is no evidence either in the legislative history of both statutes, the literature on the subject of <mask> or the cases to justify such a result. The mere fact that the 1957 Legislature used different language than the 1937 Legislature does not necessarily mean that it did not intend to achieve the same result. In my opinion, by expressly stating in subdivision 5 of section 413 of the Personal Property Law that, “(t)he credit agreement may provide for the payment of attorney’s fees * * * if it is referred to an attorney not a salaried employee of the seller or holder for collection” (emphasis supplied), the 1957 Legislature clearly indicated what it understood the 1937 statute (Banking Law, § 108, subds 4, 5) to mean and more artfully delineated the limitations upon the collection of attorney’s fees in accordance with existing laws and ethical standards.


The background for this case was set forth in Lafferty I , where we recounted that "[o]n November 1, 2005, the Laffertys bought a motor home manufactured by Fleetwood Motor Homes (Fleetwood) from Geweke. Pursuant to the terms of the installment contract, the Laffertys agreed to pay a total of $389,929 for the motor home over the course of 239 months. ... [¶] Geweke assigned the installment contract to Wells Fargo in accordance with the terms of a dealer agreement entered into between Wells Fargo and Geweke." ( Lafferty I, supra , 213 Cal.App.4th at p. 551, 153 Cal.Rptr.3d 240, fns. omitted.) The Laffertys experienced repeated problems with electrical and mechanical failures in their motor home. ( Id. at p. 552, 153 Cal.Rptr.3d 240.) After repeated failed attempts by *406Geweke to repair the motor home, the Laffertys left the motor home with Geweke and stopped making payments on the installment contract. ( Id. at p. 552, 153 Cal.Rptr.3d 240.) "Wells Fargo took possession of the motor home in accordance with the terms of the installment contract, but took no action to collect any amount of money from the Laffertys. Wells Fargo did report to various <mask> reporting agencies that the Laffertys had defaulted on their agreement to pay for the motor home." ( Ibid. )


Thereafter, plaintiff moved to amend the judgment to name First <mask> Management Corp. (FCCM) as the judgment debtor instead of Class, in order to reflect what he alleged was the true name of this defendant. Plaintiff claimed that he had been unable to enforce the judgment against Class because it had gone out of business and transferred its assets to FCCM. The court granted plaintiffs motion to the extent of ordering a hearing to determine the true name of defendant Class, or any name in which this defendant may have conducted business at the time of the occurrence upon which the judgment was based (see UDCA 1814; CPLR 5019), with a direction that plaintiff be prepared to present evidentiary proof that FCCM was liable to him for the unpaid wages which were the subject of the instant small claims action. Following the hearing, the court denied plaintiffs motion to amend, and this appeal ensued.


The court finds that plaintiff is covered by these disclosure requirements in that plaintiff regularly extends or arranges for the extension of <mask> in the ordinary course of its business, and in that it regularly allows for repayment pursuant to agreement in more than four *219installments, assessing a finance charge. The court further finds that plaintiff has failed to comply with the Truth in Lending Act and regulation Z in several ways. The purpose of the Truth in Lending Act is to “assure a meaningful disclosure of credit terms so that the consumer [can] compare * * * credit terms * * * and avoid the uniformed use of credit” (US Code, tit 15, § 1601). Regulation Z (12 CFR 226.6 [a]) mandates that the disclosures required by Federal law be clear, conspicuous, and “in meaningful sequence.” “[I]f understandable credit disclosure is to be achieved, disclosure statements must use clear language arranged in an order which provides ease of comprehension. This is meaningful sequence” (Allen v Beneficial Fin. Co. of Gary, 531d 797, 801). The language in the disclosure statement used by plaintiff fails to meet this standard. “[T]he phrase ‘in meaningful sequence’ has been interpreted to mean that items which are arithmetically related should be placed ‘within a reasonable proximity to each other, not mixed with items which are irrelevant to a progression of arithmetical computations or thought * * * so that the customer will not be required to search for any arithmetical items which should logically follow a previous one.’ (Federal Reserve Board Public Position Letter No. 780, 5 CCH Consumer Credit Guide, par 31,102 [April 10, 1974].)” (Conrad v Beneficial Fin. Co. of N.Y., 57 AD2d 91, 95).


My conclusion, reluctantly reached, is that section 1635 does not cover this transaction. That section deals with a * ‘ <mask> transaction ”, and incorporates, by reference, the definition of “ creditor ” contained in subdivision (f) of section 1602. A 1 ‘ creditor ’ ’ is there defined to refer only to those ‘ ‘ who regularly extend * * * credit for which the payment of a finance charge is required ’ ’. The presence of a finance charge is, therefore, an essential element required for a transaction to fall within the scope of the act. This is the clear holding of Mourning v. Family Pub. Serv. (449 F. 2d 235 [5th Cir., 1971]) which,1 incidentally, holds that the Federal Reserve Board had overstepped its statutory authority under the act in enacting the four-installment rule, thereby regulating transactions not involving the imposition of a finance charge. My decision is that, since the instant transaction carried with it no finance charge, or cost of credit, it was without the scope of the act, leaving aside the matter of subdivision (k) of section 226.2 of said Regulation Z.


The court will first consider defendant’s attempt .to cancel the contract by sending a letter to the plaintiff on the same day she executed the contract. Article KkA. of the Personal Property Law, the “Home Solicitation Sales Act,” provides, in section 427, that a buyer or any other person obligated for any part of the purchase price has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signed the agreement. The act singles out for special treatment <mask> sales in which the transaction is negotiated face-to-face at the residence of the buyer. However, the act specifically limits the right of cancellation to consumer contracts executed in the buyer’s home. Although high pressure salesmanship can be practiced elsewhere, the underlying theory of the act is that the buyer is more susceptible to making a bad bargain in. his home than he *142is elsewhere. Therefore, if the contract is executed at the office of the seller or some place other than the buyer’s residence the act does not apply. The court also Potes that a much more liberal Consumer Protection Law, the Federal Consumer Credit Code (section 2.501), makes the same distinction. In the case at bar the negotiations took place at the plaintiff’s place of business and therefore the defendant cannot avail herself of the cancellation rights stated in section 427 of the Act.


Despite the significant due process implication of CPLR 308, compliance has been sporadic at best. In this case plaintiff American Express commenced a <mask> action by alleged service of a summons and complaint on November 26, 1979. Defendant failed to appear and on September 1, 1983, American Express moved for a default judgment for in excess of $6,500 on the retail credit installment agreement alleged in the complaint. However, plaintiff ignored the additional notice requirements of CPLR 308 and, not surprisingly, defendant defaulted.


The retail installment obligation has a notice in bold print, which reads: "any holder of this <mask> contract IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED *529amounts paid by the debtor hereunder.” The Federal Trade Commission has mandated that this identical notice appear in consumer credit contracts (16 CFR 433.2; 40 Fed Reg No 233, 53506, Nov. 18, 1975). New York passed an amendment in 1970 to the Personal Property Law prior to the promulgation of the Federal Trade Commission rule (see L 1970, ch 299, § 2). Subdivision 5 of section 403 of the Personal Property law presently reads as follows: "the assignee of a retail installment contract or obligation shall be subject to all claims and defenses of the buyer against the seller arising from the sale notwithstanding any agreement to the contrary, but the assignee’s liability under this subdivision shall not exceed the amount owing to the assignee at the time the claim or defense is asserted against the assignee.” The purpose of this subdivision of the Personal Property Law is to eliminate the holder in due course defense in retail installment sales contracts (see Governor’s Memorandum of Approval, NY Legis Ann, 1970, p 490; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 487).


The key words in the definition of “ <mask> transaction” for our purposes are “ a transaction wherein credit is extended to an individual ” (OCA, § 2101, subd. [g]). Obviously, this was not meant to apply to members of the medical profession and related arts, who traditionally do not extend credit as such to patients as a business or medical practice. That a physican might permit payment, or even time payments, after the rendition of his total bill for services performed, for the convenience of his patients, instead of demanding cash payment immediately, cannot serve to transform an original cash basis transaction into one denominated as a “ consumer credit transaction ”.


There is, indeed, little New York law in this area. The bulk of New York cases address billing errors respecting a cardholder’s rights under the <mask> Protection Act appearing at 15 USC § 1601 et seq., and the Truth in Lending Regulations, Regulation Z (see, Plutchok v European Am. Bank, 143 Misc 2d 149 [Dist Ct, Nassau County 1989]; National Commercial Bank & Trust Co. v Malik, 72 Misc 2d 865 [Sup Ct, Albany County 1973]), which apply to individual credit card customer transactions under open-ended credit plans, commonly known as credit card or charge card accounts (Jacobs v Marine Midland Bank, 124 Misc 2d 162 [Sup Ct, Orange County 1984]). Possibly because a consumer may only be charged $50 on any item properly protested, few cases have addressed the nature of the credit card obligation (see, Chase Manhattan Bank v Hobbs, 94 Misc 2d 780 [Civ Ct, Kings County 1978] [explaining the lack of damages]).


“The summons in an action arising out of a <mask> transaction shall prominently display at the top of the summons the words ‘consumer credit transaction’ and, where a purchaser, borrower or debtor is a defendant, shall specify the county of residence of [the] defendant, if one resides within the state, and the county where the consumer credit transaction took place, if it is within the state . . . .” (CPLR 305 [a].) The pleadings prepared and served by the plaintiff in the civil action do not comply with CPLR 305. They lack the statutory notice.


Second, the right-to-cure notice has the same consumer-protective purpose as a pre-sale notice, and the requirement of a right-to-cure notice should accordingly be enforced as rigorously as the requirement for pre-sale notice. The official comments *861to § 5.110 of the Uniform <mask> Code (1974), on which § 408.554 is based, make clear that the purpose of the right-to-cure notice is "to give the consumer enough information to understand his predicament and to encourage him to take appropriate steps to alleviate it"; it "gives the average consumer the opportunity to rehabilitate his account, bring a billing error to the attention of or present a breach of warranty claim to the creditor, or negotiate a refinancing or deferral arrangement that may be required by a change in his financial circumstances." 7 Pt. III UNIFORM LAWS ANNOTATED at 237, 238 (2002). Similarly,


The typical plaintiff’s complaint in these <mask> transactions routinely only pleads an amount due and owing which, upon the default of the defendant, the plaintiff is asserting is a “sum certain.” In reality, the amount due pleaded in the complaint is a compilation of many things including items purchased by the consumer or cash advances taken along with a fluctuating interest rate calculated on a per diem basis and tied into some index presumably set forth in the agreement with the debtor but never specified or disclosed in the pleading or subsequent documents submitted to the court in an attempt to obtain a default judgment. It is the practice of the consumer credit industry for the interest rate to change to a higher default rate once the defendant is late with or fails to make a scheduled payment. The agreement also may have had an introductory artificially low “teaser” rate to induce the debtor to use the credit card, which after a set period of time automatically increased. Added to this alleged amount claimed due are late and over-the-limit fees which may also fluctuate. None of these facts are pleaded in the complaint, making it impossible for anyone to determine if the amount being sued for is in fact correct. Thereby, the very nature of the obligation allegedly incurred cannot by computation be made certain.


At first blush, the definition of <mask> transaction (CCA, •§ 2101, subd. [g]) (which now has been added verbatim State-wide [CPLR 105, subd. (f)3), as a part of the legislation limiting the places where a creditor can bring suit based on a consumer credit transaction (L. 1973, ch. 238, § 1, eff. Sept. 1, 1973), appears broad enough to encompass the local physician or dentist, etc., who allows a patient time to pay his bill. With maturity, however, first blushes can ripen into “ red faces ” and would, if such a view as defendants propose were adopted by this court.


Plaintiffs have also moved for summary judgment on their fourth cause of action which alleges that the defendant in its <mask> agreement failed to identify clearly the property to which its security interest relates as required by the Truth in Lending Act and the regulations promulgated thereunder (see US Code, tit 15, § 1639, subd [a], par [8]; 12 CFR 226.8 [b] [5]). Defendant’s disclosure statement and security agreement on their face appear to violate the Truth in Lending Act and regulations. In the upper right-hand corner of Beneficial’s disclosure statement, a box is checked stating that the security interest for the loan consists of "Furniture”. *647Beneath that area appears the following statement: "[i]f the box alongside the word 'Furniture’ is checked, the Security Agreement covers all of the consumer goods of every kind then owned by the Borrowers and located at the Borrowers’ place of residence set forth hereon.” The regulation requires "a clear identification of the property to which the security interest relates”. "Clear identification” should provide enough information to preclude any reasonable questions regarding the goods to which the security interest attaches. The document’s language and form create confusion and make it nearly impossible to determine what goods are covered by the security interest. "Furniture, household contents, and consumer goods of every kind are hardly synonymous”. (Woods v Beneficial Fin. Co. of Eugene, 395 F Supp 9, 14; and, see, Sneed v Beneficial Fin. Co. of Hawaii, 410 F Supp 1135, 1144.) Defendant has failed to provide a clear identification of the property.


____________________________________ SUMMARY The Federal Trade Commission’s “holder rule” makes the holder of a <mask> contract subject to all claims the debtor could assert against the seller of the goods or services obtained under the contract (or its proceeds). The holder rule also caps the debtor’s recovery from the holder to the amount paid by the debtor under the contract. The question in this and several recent or pending cases is whether this limitation on recovery precludes the debtor from recovering attorney fees the debtor incurs in obtaining redress from the holder. We hold, agreeing with Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, review granted April 28, 2021, S267576 (Pulliam), that the limitation does not preclude recovery of attorney fees. We further hold the limitation does not preclude recovery of costs, nonstatutory costs, or prejudgment interest. We affirm the trial court’s judgment. FACTS In March 2018, plaintiff Jonathan Alejandro Melendez purchased a used 2015 Toyota Camry from Southgate Auto, Inc., doing business as Express Auto Lending, under a retail installment sales contract. Southgate assigned the contract to defendant Westlake Services, LLC, doing business as Westlake Financial Services. In September 2018, plaintiff sent defendant a notice alleging Southgate violated the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) and demanding rescission, restitution and an injunction. Plaintiff later sued both Southgate and defendant. Plaintiff alleged violations of the CLRA, the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.), Civil Code section 1632 (requiring translation of contracts negotiated primarily in Spanish), and the unfair competition law (Bus. & Prof. Code,


Her asset portfolio, as reflected on the statement of net worth, demonstrates that she has minimal amounts in her bank accounts, lives in a home (with her second husband) that has no equity (fair market value of $174,000 is offset by a $171,000 mortgage) and has $108,000 in her employment-related retirement and investment accounts. She carries more than $28,000 in personal <mask> debt.


After hearings on a variety of motions, the trial court issued its Judgment (1) granting Father's motion to register the New York Hernandez order in Missouri for purposes of enforcement, but (2) denying Father's request to modify the Hernandez order noting that Georgia has current jurisdiction over the Hernandez order, and (3) denying Father's request to declare that Missouri has continuing, exclusive jurisdiction over all three orders, noting (a) while Missouri has controlling jurisdiction over the Tamul order and the Schaeffer order, it does not have authority to issue a controlling order over the Hernandez order, (b) each separate support case must be addressed individually, and (c) both Missouri and Georgia already follow the <mask> Protection Act (CCPA), which sets guidelines for income withholding orders. Father moved for an amended judgment or a new trial, which the trial court denied. This appeal follows.


Current retail credit practices have been subjected to substantial criticism (Curran, Legislative Controls as a Response to <mask> Programs, 8 B.C. Ind. and Com. L.R. 409 [1967] ; Caplovitz, Consumer Credit in the Affluent Society, 33 Law and Contemp. Probl. 64 [1968] ; Benfield ; Money, Mortgages and Migraine, 19 Case Wes. Res. L. Rev. 819 [1968] ; Report of the National Advisory Comm. on Civil Disorders [1967], pp. 274-276) and the method of computing charges which is under attack in this case had been disavowed (Op. No. 4706, dated August 11, 1970, Michigan Retail Installment Sales Act; letters of Hon. Persia Campbell, Consumer Counsel to Gov. A. Harriman, in Bill Jacket, dated March 15, 1957, concerning enactment Art. 10, Retail Installment Sales Act ; Montgomery Ward & Co. v. O’Neil, Minn. Dist. Ct., 2d Jud. Dist. decided April 1, 1971 ; Troelstrup, The Consumer in American Society [4th Ed. 1969]).


Where a mortgage loan is a “mortgage” under the definition set forth in 15 USC § 1602 (aa) (1), it is subject to the requirements and restrictions of the HOEPA (15 USC § 1639). To qualify as a “mortgage” within the definition of 15 USC § 1602 (aa) (1), a mortgage loan must be a “<mask> transaction” (see, 15 USC § 1602 [h]) with a “creditor” (see, 15 USC § 1602 [f¡), secured by the “consumer’s principal dwelling” (see, 15 USC § 1602 [v]), and must be a second or subordinate residential mortgage as opposed to a “residential mortgage transaction” (see, 15 USC § 1602 [w]), a “reverse mortgage transaction” (see, 15 USC § 1602 [bb]), or a transaction under an “open end credit plan” (see, 15 USC § 1602 [i]). Additionally, either the annual percentage rate of interest at consummation for the loan transaction must exceed certain levels (see, 15 USC § 1602 [aa] [1] [A]) or “the total points and fees” payable by the borrower at or before closing must exceed the greater of 8% of the total loan amount or $400 (see, 15 USC § 1602 [aa] [1] [B]).


In the present case, by claiming that process was served on an individual who understood little English, defendants are raising questions as to the sufficiency of the content of the notice and the character of the recipient. However, most courts have held that due process does not require bilingual notice where the recipient of such notice is not fluent in English (Kuri v Edelman, 491d 684; Guerrero v Carleson, 9 Cal 3d 808, cert den 414 US 1137 [welfare termination notices]; Commonwealth v Olivo, 369 Mass 62 [city housing department orders to vacate apartments]; Da Lomba v Director of Div. of Employment Security, 369 Mass 92 [notices to request unemployment compensation hearings]; cf. Castro v State of California, 2 Cal 3d 223 [no constitutional bilingual requirements for a voting ballot]; Jara v Municipal Ct. for San Antonio Judicial Dist. of Los Angeles County, 21 Cal 3d 181, *405cert den 439 US 1067, [no constitutional right to an interpreter at public expense for indigent litigants in civil proceedings];3 United States v Colon, 415 F Supp 459 [procedure satisfactory requiring prospective jurors to read, write, and understand English]; but cf. Consolidated Edison Co. of N. Y. v Vezcanino, 77 Misc 2d 475 [due process requires bilingual notice of application for replevin order in New York City]; CCA, § 401, subd [d] [bilingual summons arising from <mask> transaction]; Ratner v Drucker, 79 Misc 2d 216; cf. Judiciary Law, § 387 [court has discretion to appoint an interpreter in all court proceedings]; People v Ramos, 26 NY2d 272 [constitutional right to an interpreter in criminal proceedings]; Matter of Chatoff v Public Serv. Comm. of State of N. Y, 60 AD2d 700 [statutory right to an interpreter for deaf individual in all legal proceedings]; Kropiwka v Department of Ind., Labor & Human Relations, 87 Wis 2d 709 [hearing examiner has discretion to appoint interpreter in discrimination hearing]; 88 CJS, Trial, § 42, pp 101-102; Lau v Nichols, 414 US 563 [English language instruction required for Chinese students under Civil Rights Act of 1964]; Puerto Rican Organization for Political Action v Kusper, 490d 575 [bilingual ballot required under Voting Rights Act of 1965]).


“The United States Public Interest Research Group estimated that in 1995 banks lost approximately $90 million due to identity theft. That number continues to grow. The ‘big three’ <mask> reporting agencies report that they receive hundreds of calls every day from identity theft victims. Some courts view the banks and other entities that issue credit as the only victims in these cases. Unfortunately, consumers who have been left with damaged reputations, bad credit reports and the resource-*875consuming task of trying to correct the false credit record information, are also victims. “This bill would remove . . . significant obstacles to prosecuting identity theft in New York [S]tate. Under current law, the credit card company, not the individual, is legally considered to be the victim in financial crimes of this nature . . . This bill would declare that consumers are, in fact, victims of identity theft and would entitle them to compensation for the consequences of ‘adverse actions’ against them” (Assembly Mem in Support, reprinted in 2002 McKinney’s Session Laws of NY at 2094; see also Budget Report on Bills at 2, Bill Jacket, L 2002, ch 619 at 5 [“This bill redefines victims of identity theft as those innocent people whose identity and information is actually stolen, and provides that defendants be required to make restitution to victims for any cost or loss incurred by the crime”]). Thus, in requiring that a defendant prosecuted for identity theft have assumed the identity of “another person,” the legislature plainly contemplated criminal conduct committed against an actual victim — that is, an innocent person whose identity or information is actually stolen (efi CJI2d [NY] Penal Law § 190.78 [1], [2] [advising that jury be instructed as to name of specific person whose identity was allegedly assumed]).


*1013Thereafter, the Department of Mental Hygiene presented its claim to Father Whitney as the executor in the same amount of $14,401.51. The executor asked for an itemization of the claim with credits for amounts received from the Veteran’s Administration, Social Security and Medicare. The Department of Mental Hygiene refused to substantiate and document its claim and upon refusal of the executor to pay the claim, instituted an action in the Supreme Court of Albany County. A motion was made by the estate, in the Supreme Court of Cattaraugus County, for a change of venue on the ground that the State’s claim was based upon a <mask> transaction under CPLR 105 (subd [f]). The motion was granted but reversed by the Appellate Division on procedural grounds without discussing whether or not in fact the complaint alleged a consumer credit transaction. (State of New York v Whitney, 66 AD 2d 1029.)


*98In view of the decision which has been reached, it is not necessary to determine the constitutionality of section 9-503 under the provisions of the Federal Constitution. Further, it is not necessary to decide the additional question of whether there have been separate and different violations of the purchaser’s rights arising under treaties between the United States and the Seneca Nation by dint of the fact that the subject repossession took place on the lands of the Seneca Nation of Indians and from a purchaser who was a member of that Indian Nation. Neither is it necessary to determine whether or not the creditor bank violated provisions concerning <mask> protection under the Truth in Lending Act codified in section 1601 et seq. of title 15 of the United States Code.


The Attorney-General also notes that section 396-r is adopted from section 6.111 (subd [1], par [a]) of the Uniform <mask> Code which empowers the “Administrator” to bring an action for injunction to restrain a creditor from “making or enforcing unconscionable terms or provisions of consumer credit sales, consumer leases, or consumer loans” and provides that the court should consider “(c) in the case of consumer credit sales or consumer leases, gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in credit transaction by like buyers or lessees” (Uniform Consumer Credit Code, § 6.111, subd [3], par [c] ; italics supplied).


In the instant case, defendant asserts, generally, that he was an unsophisticated consumer lacking in comparable education to plaintiff’s representatives, who regularly arrange for the extension of <mask>. The court finds this argument, essentially one of inequality of bargaining power, to be unpersuasive, particularly in view of defendant’s failure to specifically allege any facts concerning the subject transaction which would indicate the existence of any procedural or substantive unconscionability. Similarly, this court finds defendant’s conclusory assertion that the agreement was “confusing” to be insufficient to establish unconscionability.


The issue of whether unpaid rent is a <mask> transaction has been decided (Romea v Heiberger & Assoc., 163d 111 [1998]). The obligation to pay rent has been deemed a debt under the Federal Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.). The statute defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to a judgment.” (15 USC § 1692a [5].)


Both the Beneficial Discount Co, and Manufacturers Hanover Trust Co. cases are <mask> transaction cases in which default judgments have been entered and the plaintiffs now move to amend the captions by using alleged aliases of the defendants. The granting of such motions would prejudice the rights of the defendants as enforcement, e.g., by income execution on the judgments, would be expedited. Both plaintiffs affirm that the defendants are employed under different names than appear on the captions.


The first part of this argument is easily answered. Subdivision (b) of section 226.818 of regulation Z flatly states that "Section 226.8(b)(6) relates only to charges assessed in connection with obligations which do not involve precomputed finance charges included in the obligation.” Thus, the section further explains, the difference between rebates computed by the actuarial method and the "Rule of 78’s” method is not a penalty under 12 CFR 226.8 (b)(6). Likewise, the difference *232between the "Rule of 78’s” method and the New York version of that method is not a penalty. (See, generally, Hunt, The Rule of 78: Hidden Penalty for Prepayment in <mask> Transactions, 55 B U L Rev 331.)


. Requirements governing the appearance of a summons for Civil Court cases arise from both statute and court rule (see generally, 1 West’s McKinney’s Forms, CPLR § 2:203 [“Contents of Summons and Summons with Notice”] [2005]; 86 NY Jur 2d, Process and Papers § 27 [2005] [noting substantially similar statutes and rules apply to the Civil Court, City Courts, District Courts, and Justice Courts]). The summons in <mask> transactions (CPLR 105 [f] [“a transaction wherein credit is extended to an individual . . . primarily for personal, family or household purposes”]), must be printed legibly in both English and Spanish (CCA 401 [d]), and must contain: (1) the words “consumer credit transaction” at the top; (2) a specifically worded warning in 12-point bold uppercase typeface; (3) the same warning and additional text in Spanish; and (4) a statement of defendant’s residence address and, if a New York resident, “the county where the consumer credit transaction took place, if it is within the State” (22 NYCRR part 208; see, as to point size, CPLR 105 [t]). Entry of a default judgment is precluded absent proof of the required warnings (22 NYCRR part 208).


The language of the New York definition for a “<mask> transaction” is almost the same as the definition of “debt” in the FDCPA. Further, when the plaintiff let the defendant vacate the apartment without paying the rent an extension of credit occurred. Especially, when the plaintiff had the opportunity to obtain payment from the defendant or in the *841alternative both a money judgment and possession in the Housing Court proceeding but instead voluntarily discontinued that litigation without resolving the money issue. This created a consumer debt and an extension of consumer credit under the statutes.


Plaintiff’s second ground is based on section 1666i of title 15 of the United States Code which reads in pertinent part, "a card issuer who has issued a credit card to a cardholder pursuant to an open end <mask> plan shall be subject to all claims (other than tort claims) and defenses arising out of any transaction in which the credit card is used as a method of payment or extension of credit if * * * (3) the place where the initial transaction occurred was in the same State as the mailing address previously provided by the cardholder *470or was within 100 miles from such address”. The bank maintains that since Cleveland is out of New York State and more than 100 miles from Jamestown, New York, the defendant is precluded from asserting any defense in the present action.


The defendants concede that the FDCPA and the Rosenthal Act are not entirely coextensive. However, they nevertheless argue that even though the Rosenthal Act "uses a different definition of debt collector than the [FDCPA]," this does not mean that the Rosenthal Act "regulates mortgage servicers" but the "FDCPA does not." They insist, instead, that the "[t]he FDCPA and the Rosenthal Act, though using slightly different language, both exclude mortgage servicers." However, it is clear that the Legislature intended for the Rosenthal Act to provide a broader definition of "debt collector" than that provided in the FDCPA, and, as we have explained, the Rosenthal Act's reference to an entity that attempts to collect money that is due as a result of a <mask> transaction, by its express terms, would not exclude a mortgage servicer. There is no other provision in the Rosenthal Act that *456would indicate that mortgage servicers are otherwise exempt from the Act's coverage.


“(2) (a) . . . a creditor may change any written term of an open-end <mask> contract at any time while the open-end consumer credit contract is in effect and apply the new term to the unpaid balance in the account if: “(i) the creditor mails or delivers written notice of the change. . . and “(ii) the open-end consumer credit contract expressly provides that the creditor may change terms of the open-end consumer credit contract from time to time . . . “(4) Notice under this section is not required when: “(a) the change involves: “(i) late payment charges; “(ii) charges for documentary evidence; “(iii) over-the-limit charges; “(iv) a reduction of any component of a finance or other charge; “(v) suspension of future credit privileges; or “(vi) termination of an account or plan.” Is it any wonder that credit card issuers, such as plaintiff, make their agreements subject to Utah law? An interest rate is not usurious so long as the parties “agree upon any rate of interest” (Utah Code Ann § 15-1-1 [a]). It does not even appear that the agreement has to be written. If Damon Runyon’s Nathan Detroit had known he could make loans charging 100% interest a day by reducing them to writing, and having them signed and subject to Utah law, he would not have had to seek a living running the “oldest, established, permanent floating crap game in New York.”3 The Utah law appears to limit the amount of delinquency charges a creditor may charge, but then exempts agreements made, renewed, executed or modified after May 3, 1999 from the application of the limitation. Utah law also *1025requires written notice of changes to the consumer credit contract but eliminates the need for any notice of a change of late, over-the-limit and other similar fees. Incredibly, courts are expected to enforce these agreements against unsophisticated, unrepresented consumers who reside in states such as New York which do not have similar statutes, and who have no idea that their agreement is subject to Utah law.


On appeal by both parties, the Appellate Division, Fourth Department, in Conrad v Beneficial Fin. Co. of N. Y. (57 AD2d 91), unanimously modified the decision of Special Term. The Appellate Division held that plaintiffs were not entitled to summary judgment on their first cause of action and pointed out (p 94) that it was "unnecessary to have further proceedings thereon * * * in view of our determination with respect to plaintiffs’ third cause of action”. The court granted plaintiffs’ motion for summary judgment on the third cause of action holding that required disclosures were not made clearly and conspicuously, or in the meaningful sequence. For this violation of the act, plaintiffs were awarded a statutory penalty of $1,000 together with reasonable counsel fees. The court further stated (p 95) that "multiple failures to disclose would not increase plaintiffs’ recovery (see US Code, tit 15, § 1640, subd [g])”. Moreover, the court concluded that the statutory penalty is not multiplied by the number of obligors in a single <mask> transaction, and that a creditor failing to disclose required information would be subject to a maximum penalty of $1,000 on any individual transaction. Although the court concluded that section 358 of the Banking Law operates to render this loan void, it affirmed the Special Term’s order denying summary judgment on plaintiffs’ fourth cause of action and dismissed so much of the fourth cause of action as seeks recovery of payments voluntarily made upon the loan. *645The court maintained, however, that plaintiffs’ claim for payments made under a reservation of rights remains viable.


See generally Claudia Wilner et al., The Legal Aid Society et al., Debt Deception: How Debt Buyers Abuse the Legal System to Prey on Lower-Income New Yorkers (May 2010); Rick Jurgens & Robert J. Hobbs, National Consumer Law Center, The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts (July 2010); Anika Singh, The Urban Justice *950Center, Debt Weight: The <mask> Crisis in New York City and its Impact on the Working Poor (Oct. 2007).


*99claim or defense is asserted”. Thus, not only is the holder-in-due-course doctrine eliminated from the field of <mask> sales (see Gramatan Home Investors Corp. v Lopez, 46 NY2d 481), plaintiff may be answerable in damages on the counterclaim. (Personal Property Law, § 403, subd 4; Energy Law, § 12-110.) Although there is a conflict between the contract and the Personal Property Law as to the limit of plaintiff’s potential liability, the higher limit provided for in the statute is controlling. (Cf. Saporita v Delco Corp., 104 Misc 2d 527.) Since defendants raise issues of fact with respect to the defenses and counterclaim, plaintiff’s motion must be denied.


Reference to dictionary definitions further convinces this court that section 401 does not apply to a lease of an apartment but rather to the purchase or transfer of ownership of goods and services. Webster’s New World Dictionary of the American Language (2d ed, p 306) defines <mask> as "credit extended for buying goods and services for ones personal use through installment plans; charge accounts, short-term loans, etc.” (emphasis added). Webster’s New International Dictionary (2d ed, p 573) defines consumer credit as "installment selling” (emphasis added). The only exception *919wherein a lease transaction falls within the parameters of a consumer transaction is when the lessee is bound to become, or has the option of becoming the owner of the subject of the transaction. (See 8 NY Jur, Installment Sales, § 130 et seq.)


As we construe title III of the <mask> Protection Act (US Code, tit 15, §§ 1671-1677), the maximum amount which may be garnished from the earnings of an individual for any workweek is 25% of his "disposable earnings” (i.e., after-tax earnings [see US Code, tit 15, § 1672, subd [b]), except in the case of an order for support, in which event the maximum is 50% of disposable earnings, and up to 60% where the individual receiving support is a spouse or dependent child (US Code, tit 15, § 1673). In the case before us, a payroll deduction order for support issuing out of the Family Court was served upon respondent (employer of petitioner’s judgment debtor) long before the service of petitioner’s 10% income execution (CPLR 5231, subd [b]). Since the order of support takes priority over the income execution (Personal Property Law, § 49-b), no amount may be withheld pursuant to that execution under the formula set forth in the Consumer Credit Protection Act unless, and except to the extent that, the support order does not absorb the 25% of the debtor’s disposable earnings which is susceptible to garnishment (US Code, tit 15, § 1673, subd [a]; Marshall v District Ct. for Forty-First-b Judicial Dist. of Mich., 44 F Supp 1110).


Based on the experience in this court that creditors, especially third-party debt purchasers, often cannot prevail on summary judgment motions owing to a lack of evidence coupled with their failure to either proceed to trial on <mask> cases or be successful at trial owing to a lack of admissible evidence, the court can no longer tolerate a system of entering default and “inquest clerk” judgments without requiring substantially greater documentation from plaintiffs claiming the amount due and owing is a “sum certain.” The amount being sought in these consumer credit transactions can no longer be determined from the “four corners of the instrument.” Neither the debtor, the court clerk nor a judge can verify the validity of the amount claimed due based solely on unsubstantiated numbers in a complaint or affidavit of facts. The documentation submitted in this case, and in almost all applications for a default judgment in consumer credit cases, fails to provide the necessary “requisite proof’ to support entry of judgment pursuant to CPLR 3215 (a).


Defendant claims that the requirements under section 1666 of title 15, however, are inapplicable to the facts and circumstances of this case. The sole ground for this argument is that section 1666 of title 15 is strictly limited to open-end <mask> plans and does not establish procedures for billing disputes that may arise in any or all consumer debtor-creditor situations. Consequently, since the instant credit transaction is concededly not an open-end consumer credit plan transaction, defendant argues that it had no obligation to comply with section 1666 of title 15 of the United States Code, and, thus, as a matter of law, cannot be cast in damages by reason of section 1640 of title 15. The court agrees.


The issue of whether exemption from levy or execution applies when the judgment debtor is not the recipient of welfare benefits appears to be one of first impression. It is further noted that the HRA has represented to the court that plaintiffs service of the execution with notice to garnishee upon the former is “unprecedented.” The case law on the subject appears to deal exclusively with circumstances in which the judgment debtor himself or herself is the recipient of welfare benefits, in which case it is clear that such benefits are exempt (see Matter of Rose v Moody, 83 NY2d 65 [1993]; Prior v Cunningham, 27 NY2d 502 [1970]; Evans v Sturdivant, 99 Misc 2d 1058 [1979]; <mask> Corp. v Lewis, 63 Misc 2d 928 [1970]). However, it is noted that those cases all state (citing Social Services Law § 137) that it is the monies which are exempt from execution. Indeed, the court must give effect to the plain meaning of the statute, and where the statute is clear and unambiguous, the court should construe same to give effect to the plain meaning of the words (see Buchbinder Tunick & Co. v Tax Appeals Trib. of City of N.Y., 100 NY2d 389 [2003]; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 [2001]).


“A defendant’s default does not, however, give rise to a ‘mandatory ministerial duty to enter a default judgment against it’ (Gagen v Kipany Prods., 289 AD2d 844, 846 [2001]). Rather, a plaintiff must support its motion for a default judgment with ‘enough facts to enable [the clerk or the] court to determine that a viable cause of action exists’ (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). Moreover, where application is made to the clerk, i.e., in cases where the claim is ‘for a sum certain or for a sum which can by computation be made certain,’ entry of a judgment by the clerk is authorized only where there can be no reasonable question about the amount of the judgment (see Weinstein-KornMiller, NY Civ Prac ¶ 3215.04 [2d ed]), such as actions upon money judgments or negotiable instruments (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 [1978]). Even where a viable cause of action exists, if the damages sought cannot be readily ascertained without resort to extrinsic proof, entry of judgment by the clerk is improper (id. at 573) . . . Accordingly, the damages *913sought by the plaintiff were not readily ascertainable with resort to extrinsic evident, and it was therefore error for the clerk to enter a default judgment.” (PDQ Aluminum Prods. Corp. v Smith, 20 Misc 3d 94, 96-97 [2008].) As set forth above, CPLR 3215 (a) only permits such a practice when the “claim is for a sum certain or for a sum which can by computation be made certain.” The statute goes on to permit the entry of a judgment by the clerk “upon the submission of the requisite proof.” What is to be included in the “requisite proof’ is set forth in CPLR 3215 (f). There is little guidance as to what documentation is to be included in the affidavit of a party so that there is sufficient “proof of the facts constituting the claim” to support entry of such a judgment. (Id.) The current practice is to accept the entry of these judgments based on an “affidavit of facts” from a person having “personal knowledge” of the facts. There is no specification of the documentation required to support the allegations in the affidavit of facts or to verify how the amount due and owing is calculated. This practice and procedure may have made sense when default judgments were sought to be entered for a failure to pay on a promissory note or other negotiable instrument or for breach of contract where the pleadings and the affidavit of facts would permit the defendant or the clerk examining the file to calculate the amount due. Such a system is not tolerable in regard to credit card and other <mask> debt cases where items such as the interest rate, late payment charge, and over-the-limit fees may change several times over the course of the consumer credit agreement. The modifications are often triggered by the card issuer allegedly mailing a notice of the alteration of the terms and the card holder using the credit card after the notice date.


While no reported cases have been discovered that deal squarely with the issue here presented, the question of the vulnerability of a “ holder-in-due-course ’ ’ to defenses available against the payee-vendor in <mask> transactions has been exhaustively considered by the Superior Court of New Jersey in the case of Westfield Investment Co. v. Fellers (supra). The reasoning of the learned Judge Hopkins is deemed particularly apposite to the case at bar because the decision there turned on the question of whether the relationship between the alleged holder-in-due-course (the endorsee-finance company) and its transferor (the payee-vendor) was such as would support a finding that the finance company was so directly interested and involved in the transaction of purchase that it could not escape the legal imputation that it stands in the shoes of the vendor.


Plaintiff instituted this action to recover under the Federal Fair Credit Reporting Act (15 USC § 1681n) and the New York *461Fair Credit Reporting Act (General Business Law, art 25, §§ 380 — 380-j). He relies on defendant Shapiro’s alleged improper procurement of plaintiff’s <mask> profile report from TRW and use of it in a Surrogate’s Court action in which plaintiff was the attorney for the coexecutrices of the estate of Marcia M. Besaine. Plaintiff alleges that defendants employed the TRW consumer credit report in the probate action to impugn his personal and professional reputation in violation of the statutorily authorized purposes of credit reports. Plaintiff contends defendants ignored — either with actual malice or in reckless disregard of their duty to know — the prohibitions in both the Federal and New York acts against use of a consumer credit report in a judicial proceeding.


A review of the complaint and the documents submitted to obtain the default judgment disclose that under the new *325Uniform Rules for New York City Civil Court (22 NYCRR 208.14-a) governing <mask> transactions, this litigation would have to be dismissed. (See also CACH of Colorado, LLC v Lazarovwsky, 46 Misc 3d 1201[A], 2014 NY Slip Op 51759[U] [2014]; Matter of Pinpoint Tech. LLC, 45 Misc 3d 1223[A], 2014 NY Slip Op 51695[U] [2014].)


Consumer Protection Law § 20-701 (c) defines "Consumer goods, services, credit and debts” as "goods, services, credit and debts which are primarily for personal, household or family purposes.” Subdivision (d) defines "Consumer” as a "purchaser or lessee or prospective purchaser or lessee of the consumer goods or services or <mask>, including a co*867obligor or surety.” The consumer essentially is defined vis-ávis a "Merchant”, who is defined in subdivision (e) as a "seller, lessor, or creditor or any other person who makes available either directly or indirectly, goods, services or credit, to consumers.” Merchants are further defined to include "manufacturers, wholesalers and others who are responsible for any act or practice prohibited by this subchapter.”


The right of rescission arises in the case of "any <mask> transaction * * * in which a security interest * * * is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended” (15 USC § 1635 [a]). There are certain exceptions which are not relevant to the case at bar. The borrower is entitled to rescind the transaction "until midnight of the third business day following the consummation of the transaction or *538the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this title * * * whichever is later” (15 USC § 1635 [a]). The consumer can opt to rescind for any reason, or for no reason (National Consumer Law Center, Truth in Lending [3d ed 1995]).


*728On approving chapter 883 of the Laws of 1980, the Governor stated (NY Legis Ann, 1980, p 390) in part: “Currently, State statutes prescribe the maximum rates which can be charged on most types of consumer loans. These rates are inflexible; they are, in most cases, substantially below prevailing market rates; and they are below the rates allowed in most other states. Faced with the high cost of funds, increased overhead, and low consumer interest rate ceilings, many banks and other lenders in New York have been led to restrict sharply the availability of <mask>, adversely affecting the broad spectrum of New Yorkers who rely on credit.”


This problem was considered in Weathersby v Fireside Thrift Co. (CCH, <mask> Guide, par 98,640), wherein class certification was denied upon plaintiff’s request that the court provide in the order certifying the class that individual recovery would not be affected by certification. It was there concluded that because the plaintiff might receive money that would otherwise go to unnamed class members they could not fairly and adequately protect the interests of the class. This analysis was cited with approval in Agostine v Sidcon Corp. (69 FRD 437, supra) but rejected in Postow v Oriental Bldg. Assn. (390 F Supp 1130, 1140-1141, supra).


Together with its answer, defendant Allstate Insurance served a demand for a change of venue. Soon thereafter, defendant moved for a change of venue claiming that each instant action is governed by CCA 301 because medical services is a <mask> transaction. Alternatively, defendant seeks a change of venue on each instant action based on CPLR 510 (3), which provides a court the discretion to change the venue upon motion for the convenience of the witnesses and in the interest of justice. On each motion, defendant submits identical affirmations which state that, “[s]ince the Plaintiff and Plaintiff’s assignor, and the claim representative from [Allstate Insurance], all of whom are material witnesses, reside in Kings County” the venue should be changed to that County.


Plaintiffs and appellants, Robert A. Brown ("Brown"), and his two then-minor daughters, Kirsten Brown and Kayla Brown (collectively, "the Browns"), were patients of a dentist named Dr. Rolf Reinholds. In July 2000, Dr. Reinholds billed Brown $600 in connection with a dental *70crown. After Brown paid only a portion of the bill, Reinholds referred the debt to a collection agency called Credit Bureau Services, owned by defendant and respondent Stewart Mortensen. *936The Browns brought suit in 2003, contending an employee of Mortensen transmitted confidential medical (i.e., dental) information received from Dr. Reinholds to the three major national <mask> reporting agencies, Experian, Equifax, and Trans Union, in violation of the CMIA.3


Allstar’s position is correct: Installment payments and income execution are two different means of enforcement under CPLR article 52. Unlike CPLR 5231, CPLR 5226 does not contain a limit on the amount of an installment payment order (see Craig v Klein, 2004 WL 5487913 [Sup Ct, NY County 2004], affd 8 AD3d 55 [1st Dept 2004]). The purpose of CPLR 5226 is to “compel payment of judgments by debtors who are in a position to do so” (Bergman v Buechler, 249 App Div 553, 555 [1st Dept 1937]). In differentiating the CCPA and income execution from all other forms of postjudgment enforcement, the United States Court of Appeals for the Second Circuit held that “[CPLR] Article 52 provides a variety of means for the enforcement of money judgments. The <mask> Protection Act merely prohibits . . . the garnishment of [defendant’s] wages” (Long Is. Trust Co. v United States Postal Serv., 647d 336, 342 [1981]). Historically, New York courts have granted installment payment orders where the debtor’s wages were subject to garnishment under CPLR 5231 (see Matter of Widder Bros. v Kaffee, 19 AD2d 817 [1st Dept 1963]). Accordingly, that Curry’s wages are garnished does not prevent Allstar from seeking installment payments.


Assuming the requisite conditions are met, the more expeditious approach to remedy the alleged wrongs perpetrated upon those persons described by plaintiffs would dictate certification of one class to be all persons who have received loans from the defendant and who have entered into contractual relations with the defendant by way of mortgages on their property between July 15, 1974 and July 17, 1975 and who were not provided with the disclosures required by the <mask> Protection Act (US Code, tit 15, § 1601 et seq.). In so defining the class, the plaintiffs may complete their pretrial discovery procedures and thereafter ascertain the nature and extent of all purported violations of T-I-L upon which it is intended that proof will be offered. Only at such later time and upon a determination that the complexity of the issues so require, may a meaningful and appropriate subdivision of the classes be described.


Section 125 of the act provides, in part: "(a) Except as otherwise provided in this section, in the case of any <mask> transaction in which a security interest is retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction”. And "(b) When an obligor exercises his right to rescind under subsection (a), he is not liable for any finance or other charge, and any security interest given by the obligor becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” (Emphasis supplied.)


Venue in a transitory action is normally laid in the county where one of the parties resides at the time the action is commenced. (CPLR 503; CCA 301.) In “an action arising out of a <mask> transaction where a purchaser, borrower or debtor is a defendant”, venue must be laid in a county where the defendant resides or where the transaction took place. (CPLR 503, subd [f]; CCA 301, subd [a].) The term “consumer credit transaction” means a transaction where credit is extended to an individual and the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes. (CPLR 105, subd [f].)


Allowing the assignee to give notice would enable dishonest debt collectors to search the court records, obtain the names of judgment debtors and send the debtor a letter stating they have purchased the debt from credit card issuers such as Chase and the debtor should make all payments to the third party. Requiring the assignor-credit card issuer to serve the notice would reduce the incidents of fraud in this regard. The Federal Fair Debt Collection Practices Act lists 16 “false, deceptive or misleading” practices, some of which would not be available by requiring a notice of assignment to be given by the assignor to the debtor. The trend in consumer protection law is to require such notice (see Uniform <mask> Code 1974 § 3.204, ULA Cons Credit § 3.204 [2009]), especially in dealing with consumer credit debt where the vast majority of defendants are unrepresented, unsophisticated individuals. As the Court of Appeals stated in Tri City Roofers v Northeastern Indus. Park (61 NY2d 779, 781 [1984]): “A judgment debtor is not called upon to search the county’s records every time he is served with an execution or desires to make a payment on his debt.” The failure to establish that notice of the assignment was given to the debtor makes the assignment ineffective.


On May 16, 1983, plaintiff (Ayanru) purchased a new 1983 Buick Skylark from Pepper and Potter Buick. The car was manufactured by Buick Division of General Motors. The sales receipt lists GMAC as lien holder and the amount financed to be $8,500. The receipt also states that the seller disclaims all express or implied warranties as to merchantability or fitness. The car came with a 12,000-mile/12-month (whichever sooner) limited warranty, of four printed pages, provided by defendant General Motors (GM). The warranty states in part, "It is our intent to repair under the warranty, without charge, anything that goes wrong during the warranty period that is our fault”. At time of purchase, Ayanru executed a retail installment contract for $8,500 with Pepper and Potter, which was duly assigned to defendant General Motors Acceptance Corporation (GMAC). The retail installment agreement states in part, "Any holder of the <mask> contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.”


Curry argues that Allstar’s motion for installment payments should be denied because it violates 15 USC § 1673, the *515<mask> Protection Act (CCPA). The CCPA prohibits the garnishment of wages in excess of 25% of a debtor’s disposable earnings. Curry contends that his wages are already being garnished by more than 25%, and Allstar’s motion is an improper attempt to bypass the CCPA’s restrictions. Allstar counters that wage garnishment, also known as income execution (CPLR 5231), and installment payments (CPLR 5226) are separate remedies.


“(1) (a) The parties to any <mask> agreement may contract for a delinquency charge on any installment not paid in full by its scheduled date in an amount not exceeding the greater of: “(i) $30; or “(ii) 5% of the delinquent unpaid amount of the installment. “(b) Notwithstanding Subsection (1) (a), in a contract, renewed, executed, or modified on or after May 3, 1999, a depository institution as defined in Section 7-1-103 may contract for and collect a delinquency charge on an installment not paid in full by *1024its scheduled due date in excess of the limitation imposed under Subsection (1) (a).” The Utah statute controlling the change of terms of open-end consumer credit contracts (Utah Code Ann § 70C-4-102) provides: