A state judge has thrown out a credit card company’s breach of contract action against a cardholder, saying it failed to show the existence of a contract offer and faulting what he called its “robo-testimony.”
American Express Bank FSB sued Felicia Tancreto for breach of contract and account stated on an unpaid balance of just over $16,000 on her American Express Platinum Costco Card.
The company sued Tancreto after refusing to agree to a deferred payment plan she proposed when she learned a May 2010 surgery would prevent her from keeping up with her payments.
But Acting Supreme Court Justice Noach Dear in Brooklyn (See Profile) dismissed the case with prejudice, holding American Express had failed to demonstrate the company ever mailed the offer of a credit card agreement to Tancreto.
“Without an offer, there can be no acceptance, which negates the element of contract formation,” Dear, who sits in New York City Civil Court, wrote in American Express Bank v. Tancreto, cv-24043-11/KI.
The April 27 decision followed an April 2 trial. Though Tancreto, who represented herself initially, had a default judgment entered against her, she successfully sought to vacate the order and subsequently disputed the amount owed.
At trial, American Express called Linda Salas, who has testified before Dear about a half dozen other times regarding unpaid credit cards. She said agreements like the one purportedly between American Express and Tancreto were routinely mailed to cardholders. Here, the company produced an update of the purported agreement with Tancreto’s October 2010 statement.
Transcripts show Tancreto objected to the agreement’s admission into evidence because her address was incorrectly listed. The judge sustained her objection, ruling that the documents were hearsay.
In his decision, Dear said American Express failed to prove the existence of a contract by showing either the actual mailing or proof of a standard practice that the agreements were correctly mailed and addressed.
Dear added that in past cases before him involving American Express entities Salas gave “nearly identical testimony in each instance.”
He noted that American Express has numerous business entities. Salas testified to having been an employee of American Express Bank FSB for 25 years, but, according to the judge, the subsidiary is only 12 years old.
“Given the various entities and seemingly contradictory organization dates, conclusory testimony is simply not enough to qualify Ms. Salas to testify about the ‘business practices and record-keeping procedures of the [American Express] entity that produced the records,’” Dear said.
The judge compared Salas’ testimony to the practice of “robo-signing”—constantly swearing to the accuracy of foreclosure documents without a close inspection of their contents.
“Here, Ms. Salas’ testimony could only be termed ‘robo-testimony’ because, like ‘robo-signing,’ it was identical to the foundational testimony in other trials,” he wrote.
Dear suggested that the courts require in consumer credit cases an affirmation akin to the one now required in residential mortgage foreclosures, where lenders’ attorneys must attest to the accuracy of underlying court papers.
“A similar requirement, mandating verification of the plaintiff’s ownership of the debt and its amount, may improve the integrity of consumer collection cases,” he wrote.
In a footnote, the judge added that verification of a creditor’s ownership of debt was especially important in default judgments “because plaintiffs may improperly shift the evidentiary burden on an ill equipped party that is trying to vacate that default judgment.”
Joshua Knurr of American Express Legal represented American Express.
Marina Norville, a spokeswoman for the American Express Company, the parent of American Express Bank FSB, said the company is reviewing the decision and considering whether to appeal, but declined to comment further.
Tancreto could not be reached for comment.
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