We’ve heard a lot about “robo-signing” – the practice of debt collectors robotically signing off on hundreds, sometimes thousands, of boilerplate affidavits without verifying the information contained in them. The affidavits are then submitted to courts in support of the debt collectors’ efforts to collect a debt. Such affidavits are meant to be fact-specific to each debt, and each signature is required by law to be sworn in front of a notary at the time of signing.
In a recent case in Kings County (NY) Civil Court, reported today in the New York Law Journal, Judge Noach Dear has coined a new term: “robo-testimony.”
The plaintiff, Chase Bank, sued a consumer for breach of contract and account stated to recover on three alleged credit card accounts. At trial, the court did not allow the account statements offered into evidence by Chase because a proper foundation was not laid for their admission as business records under CPLR § 4518.
The court stated that the attempted foundational testimony by the keeper of the records for Chase, Mr. Lavergne, was:
"essentially a verbatim recitation of CPLR § 4518(a). He gave absolutely no testimony as to how the electronic records concerning defendant’s account statements came into existence nor did he indicate that he even knew how such information was collected. It would appear that credit card statements contain information that is conveyed from multiple entities, from the reporting merchant through various intermediaries, until the information is ultimately incorporated into plaintiff’s business records… Certainly, Mr. Lavergne did not demonstrate that the person or persons who inputted the electronic data had actual knowledge of the events inputted, or that such person or persons obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events."
The court went on to say regarding the testimony by the keeper of the records,
"Moreover, Mr. Lavergne failed to demonstrate that the credit card statements were routine reflections of day-to-day operations of Chase or that Chase had an obligation to have the statements be truthful and accurate for the purposes of the conduct of the enterprise."
The court found that Mr. Lavergne’s testimony was “highly suspect” because some of the records Chase sought to introduce were prepared by Washington Mutual Bank, and Mr. Lavergn’s testimony to admit them was the same as for records prepared by Chase. “Because Mr. Lavergne never worked for Washington Mutual Bank,” the court’s opinion stated, “it defies logic that he would have personal knowledge of Washington Mutual Bank’s business practices and procedures. For these reasons, the Court gives Mr. Lavergne’s 'robo-testimony' no weight or credit.”
The court dismissed plaintiff’s cause of action for breach of contract because it did not introduce any admissible proof of damages. As there was also no credible testimony that the account statements were mailed pursuant to a standard office practice, the court held that Chase’s account stated claim failed as well. The court dismissed Chase’s complaint with prejudice. The case is captioned Chase Bank USA, N.A. v. Gergis.