Seeking to recover $20,359.06 from a pro-se defendant at bench trial, Cohen & Slamowitz, LLP fails to offer credible evidence to establish the existence of any enforceable credit card debt.
The court gave "no weight or credibility to the testimony of the employee's witness" or to the "plaintiff's documents." The smart debtor objected to the admissibility to the documents offered to allegedly establish a contract. The court agreed with Defendant; Because the documents were not admissible by themselves, Plaintiff's witness could not lay their foundation to render them admissible.
Cohen & Slamowitz could not prove a case based on the theory of account stated either. The basic elements needed for an account stated claim are:
1) the parties agreed up on a balance of indebtedness;
2) a liability must already exist; the statement(s) can not be used to create liability; and
3) the debtor must agree to the balance or fail to object to them.
Let's not forget that the plaintiff must further prove precisely the amount of its damages. By the time the consumer is sued, the debts changed hands so many times, satisfactory evidence often times does not accompany these exchanges. Out-of-state banks must also prove that its interest rates applied comply with New York State law.
(Citibank (South Dakota), N.A. v. Tabaru, NYLJ, at 19, col 3).