Creditors frequently find themselves frustrated by the cost and time required to litigate collection actions. Between initial investigation, pre-action negotiation, commencement, discovery, and motion practice, it can be costly to go from being owed money to having an enforceable judgment. Debtors are able to use these often high transaction costs as leverage against creditors who know that every dollar spent pursuing a debt reduces their net recovery. Add to this the often protracted nature of conventional litigation, and creditors may be inclined to simply write some debt off as a loss. This may be an especially hard pill to swallow in a case where the creditor is clearly entitled to collect the debt, but is at the mercy of a debtor who knows that every act of gamesmanship increases the cost to the creditor and makes it increasingly likely that he can settle for less. So, is there anything that a creditor can do to cut costs, save time and increase net recoveries in clear-cut cases? Thankfully, New York provides just such a mechanism with CPLR 3213.
WHAT IS CPLR 3213?
CPLR 3213—also known as a Motion for Summary Judgment in Lieu of Complaint—allows a plaintiff to use an expedited process in specific collection actions. Instead of filing a summons and complaint, as one would to commence conventional litigation, the plaintiff is permitted to file a summons with an immediate motion for summary judgment. In essence, the plaintiff is able to skip ordinary commencement procedures and costly discovery, and proceed straight to judgment. While CPLR 3213 is not available in all collection actions, for the right case, it is an indispensable tool that can save time and money.
WHEN IS CPLR 3213 AVAILABLE?
CPLR 3213 is available any time an action is based on “an instrument for the payment of money only.” Whether an action falls within the ambit of the statute has been the subject of extensive litigation. The touchstone requirement, however, is that the debt instrument at issue represent an unconditional obligation to pay money at a specified time, or upon demand. By contrast, CPLR 3213 is generally unavailable if proof beyond the face of the instrument is necessary to establish a right to payment. As a result, CPLR 3213 is useful only in actions involving a clear-cut right to payment.
Despite its relatively narrow applicability, parties have successfully used CPLR 3213 to obtain judgments in actions based on notes, guarantees, accounts stated, security agreements, bonds, and foreign country judgments, to name a few. Whether the statute applies to a given action is highly dependent on the terms of the instrument itself. The easiest way to ensure that a document is amenable to CPLR 3213 is to simply state so in the instrument. Establishing that an instrument is subject to CPLR 3213 may be somewhat onerous, but once it is established, the plaintiff has overcome an obstacle to obtaining expedited judgment.
HOW TO BRING AN ACTION UNDER CPLR 3213
Once a plaintiff determines that an instrument is suitable for resolution under CPLR 3213, bringing the action is relatively straightforward. Just as with any action, the plaintiff must file and serve a summons. Unlike a traditional action, however, rather than a complaint, the plaintiff must file the papers ordinarily submitted on a motion for summary judgment. These papers include a notice of motion and supporting papers, which typically consist of the instrument underlying the action and proof of non-payment by affidavit. Once the plaintiff makes an initial showing of the debt and non-payment, the burden shifts to the defendant to raise an issue of fact with respect to a “bona fide defense” to the action, such as fraud or invalidity. If the defendant fails to make that showing, the court will enter immediate judgment in the plaintiff’s favor.
WHAT ARE THE RISKS OF USING CPLR 3213 RATHER THAN COMMENCING A TRADITIONAL ACTION?
There are few downsides to bringing an action under CPLR 3213. By default, if the motion is denied, the plaintiff’s motion papers are treated as a complaint, and the defendant’s opposition papers are treated as an answer. More often, however, the court will simply direct that the parties submit ordinary pleadings, and the action proceeds as though it were a standard action. Therefore, the only risk associated with unsuccessfully commencing an action under CPLR 3213 is the cost associated with preparing the motion papers. By contrast, the potential benefit is immediate judgment at the earliest stage of the case. A party has little to lose by using CPLR 3213 to commence the action rather than the traditional summons and complaint.
CPLR 3213 may be a helpful tool to bypass litigation steps such as pleadings and discovery, resulting in an enforceable judgment in a fraction of the time, and at a fraction of the cost, as conventional litigation. Despite this, CPLR 3213 is still underutilized in most collection actions, but should be considered any time a debt is owed based on commercial paper.