Judge dismisses American Express complaint after finding American Express offered "robo-testimony" at trial

In this case, captioned American Express Bank v. Tancreto[1], American Express Bank, F.S.B. brought causes of action for breach of contract and account stated to collect on a credit card issued to the defendant. Following the vacatur of a default judgment by order to show cause, the case was returned to the court's calendar, and the parties were directed to appear for trial.

At trial, the plaintiff called Linda Salas, who testified she had been employed by the plaintiff for 25 years. Salas was shown a series of documents, and Salas testified that they were defendant's account statements. The defendant, appearing pro se, did not object to their admission into evidence, but presiding Judge Noach Dear did, and asked additional foundation questions to determine the reliability of the records.

The plaintiff next sought to enter into evidence a copy of the purported credit agreement between the plaintiff and the defendant. Salas testified that agreements such as the one shown to her were routinely made by the plaintiff, and routinely mailed to customers in the regular course of business. Salas said she was certain this agreement had been mailed because it was the policy of plaintiff to send these agreements. The defendant objected to the admission of the agreement, and Judge Dear sustained.

When plaintiff called the defendant to testify, the defendant acknowledged she had an American Express card, but never identified which American Express corporate entity issued the card. She testified that in 2010, she called American Express to explain that she needed surgery and would not be able to keep up her payments, and American Express' response was to file this lawsuit against her.

The court found that both of the plaintiff's causes of action failed because the plaintiff could not establish with admissible evidence that it had mailed either the account statements or the contract. The court stated that unless plaintiff established the contract was mailed, there was no offer, and without offer and acceptance, there could be no contract formation.

As to the account statements, Judge Dear found Salas' testimony "woefully insufficient" to establish that the statements were mailed to the defendant in a manner that would ensure their receipt by the proper person. Thus, said the court, "the essential element of an account stated, an agreement with respect to the amount of the balance due, was not established, because no account was presented to the defendant."

Judge Dear then took judicial notice of the fact that Salas had given testimony in other cases before him, on behalf of other American Express companies, such as American Express Centurion, that are separate and distinct legal entities. Salas gave nearly identical testimony in each instance. Judge Dear also noted that here, Salas claimed she had worked for American Express for 25 years, yet according to its governmental filings, the plaintiff company American Express F.S.B. has existed for only 12 years. For these reasons, the court concluded Salas' testimony was "robo-testimony" – she gave the same testimony in every case, regardless of the documents about which she was testifying – and thus lacked credibility.

The court also found that the plaintiff had not established damages by a preponderance of admissible evidence.

Judgment was ordered in favor of the defendant and against the plaintiff, and the case was dismissed on the merits, with prejudice.

In dicta, Judge Dear made note of recent articles in American Banker and the New York Times regarding the inaccuracies of bank records (which we blogged about in this article Bank of America, CACH LLC paperwork is lacking). Judge Dear said he had observed repeated situations where the creditor had sued the wrong debtor and/or alleged the wrong amount. He also had observed plaintiff's counsel telling pro se defendants that they would drag out cases to cause the defendant to miss more time from work. Such misinformation and protracted litigation caused defendants to settle cases based on defective evidence.



[1] American Express Bank v. Tancreto, CV-24043-11/KI (Civ., KI, Decided April 27, 2012, Judge Noach Dear).

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