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American Express Bank FSB v. Deering

Supreme Court of Maine

July 26, 2016

AMERICAN EXPRESS BANK FSB
v.
DIANE DEERING

          Submitted On Briefs: June 22, 2016

          Mark A. Kearns, Esq., and Mark L. Randall, Esq., Portland, for appellant Diane Deering

          Randall L. Pratt, Esq., Portsmouth, New Hampshire, for appellee American Express Bank FSB

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] Diane Deering appeals from a judgment entered in the District Court (Biddeford, Foster, J.) in favor of American Express Bank FSB in the amount of $22, 339.94 after a trial during which American Express argued that Deering owed that amount in credit card debt. Deering argues that the court erred in admitting records pursuant to the business records exception to the hearsay rule.[1] We discern no error in the courts findings or evidentiary rulings, and we affirm the judgment.

         I. BACKGROUND

         [¶2] On January 20, 2011, American Express filed a complaint in the District Court alleging that Deering had entered into a credit card agreement with American Express, used the credit card to make purchases and/or cash advances, and failed to make payments. The complaint sought a judgment in the amount of $22, 339.94 "plus interest, costs, legal fees, " and "such other relief as the court deemed "just and proper." On December 6, 2012, [2] Deering denied the allegations. On August 19, 2013, the parties convened for a hearing but, due to pretrial issues raised by Deering, the hearing was continued.

         [¶3] On May 27, 2015, Deering filed a motion in limine seeking to exclude from evidence "any business records for which [American Expresss] witnesses cannot provide the required foundation pursuant to M.R. Evid. 803(6)." The court held a trial on June 2, 2015, almost three years after Deering was served. Deering appeared through counsel but did not appear personally and did not offer any witnesses or exhibits. American Express presented the testimony of one witness-agent and employee Edmond Garabedian.

         [¶4] Because Deering challenges the courts determination that American Express provided the required foundation for admission of the companys business records, we review Garabedians testimony in detail. He testified to the following. Garabedian has worked for American Express for almost forty years in several departments. He currently works in the global collections department, where he is a department manager and the records custodian. He has handled hundreds of cases similar to this case.

         [¶5] Garabedian provided the following details for the process of issuing a credit card and creating account statements. Individuals can apply for the American Express Delta SkyMiles Credit Card through a paper application, online, or over the telephone. No account can be created without an application. If the individual qualifies after a credit assessment, American Express assigns a unique account number and sends the individual a card. American Express statements are created based on the activity of the cardholder. When a cardholder uses his or her credit card, the merchant then uses that account number to submit a charge to American Express. American Express stores the account number, the date and place of use, and the amount of money charged. After a period of approximately twenty-eight days, American Express gathers all of the charges, creates a monthly statement, and makes that statement available to the cardholder. This is done in the ordinary course of business.

         [¶6] During Garabedians testimony, American Express offered two exhibits pursuant to the business records exception to the hearsay rule: sixty-two monthly statements documenting Deerings account activity from March 2005 to September 2010 and a 2008 Delta SkyMiles Business Credit Card Agreement. The parties agree that several monthly statements were missing from the large group of statements. Garabedian testified that American Express maintains these records electronically. It is not possible to change a document after it has been printed or sent by American Express.

         [¶7] With regard to the monthly statements, Garabedian testified that someone in his office generated the statements by sending an electronic request for their reproduction. The electronic request generates a "job" within the archive system, which pulls the electronic information based on the account number and time frame. The archives, which are stored on computers located in Phoenix, Arizona, are secure, and the records are properly maintained and stored. The reprinting is then done within the American Express global mail services department, which sends the documents to Garabedians office. Garabedian did not know why a few months of statements were missing from the statements that American Express sought to admit in evidence. Garabedian personally reviewed monthly statements associated with Deering and identified a particular unique account number associated with Deerings name.

         [¶8] With regard to the credit card agreement, Garabedian testified that it was obtained by his office in the same manner as the statements. After the agreement was created in 2008, it was automatically mailed to every new and ongoing cardholder with a Delta SkyMiles account.

         [¶9] Deering moved to exclude the records. The court found that the statements were reliable despite the fact that a few months of statements were missing, noting that the fact that there were missing statements "goes to weight and not whether or not the exhibit itself is admissible." The court also found that Garabedian had laid a proper ...


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