DECISION AND ORDER AFTER NON-JURY TRIAL Plaintiff Discover Bank commenced this consumer credit action against Defendant Laquanda Carter seeking $10,985.02 for account stated and breach of a credit agreement. At trial, Plaintiff’s Vendor Analyst Raphael Smith and Defendant testified. After trial, the Court finds in favor of Defendant and dismisses the Complaint. FINDINGS OF FACT AND CONCLUSIONS OF LAW1To prevail on a cause of action for breach of agreement, a plaintiff must tender sufficient admissible evidence that there was a credit card agreement, the defendant’s use of the card thereon, and that the agreement was breached by the defendant when he failed to make required payments (Am. Express Bank, FSB v. Scali, 142 AD3d 517, 517-18 [2d Dept 2016]). Importantly, a signed agreement is not necessary to find a credit agreement because the issuance of a credit card constitutes an offer of credit…[and] acceptance of the offer…[is the] use of the card by the holder” (Creditone, LLC v. Fang Mei Feldman, 34 Misc 3d 1218(A) [Sup Ct NY County 2012], citing Feder v. Fortunoff, Inc., 114 AD2d 399 [2d Dept 1985]).Additionally, “under New York law, an ‘account stated’ refers to a promise by a debtor to pay a stated sum of money which the parties had agreed upon as the amount due” (Air Atlanta Aero Eng’g Ltd. v. SP Aircraft Owner I, LLC, 637 F Supp 2d 185, 197 [SDNY 2009]). “An account stated assumes the existence of some indebtedness between the parties, or an express agreement to treat the statement as an account stated” (M. Paladino, Inc. v. J. Lucchese & Son Contracting Corp., 247 AD2d 515, 669 NYS2d 318, 319 [2d Dept 1998]). “In the absence of a claim establishing underlying liability, the account stated claim [is] not viable” (Unclaimed Property Recovery Serv., Inc. v. UBS PaineWebber Inc., 58 AD3d 526, 870 NYS2d 361, 362 [1st Dept 2009]).Having had the opportunity to observe the witnesses and consider the credible evidence, the Court finds that Plaintiff has failed to establish by a preponderance of the credible evidence that Defendant entered into a credit agreement with Plaintiff. Given this finding, there is no underlying liability, and therefore Plaintiff’s account stated claim must also fail. However, even if there had been an agreement, the Court finds that Plaintiff failed to establish that it sent Defendant any statements.Smith, whose duties at Discover Products, Inc. include account review and serving as custodian of records, testified that he has access to “Discover’s…internal data and systems to review accounts” in litigation, including statements, agreements, payments, and transactions, and credibly explained Discover’s recordkeeping procedures and credit card application process (Tr 5, et seq).2Based on his testimony, the cardmember agreement, account statements, and charges listed in the statements, the Court finds that Plaintiff established that a credit card account was opened in Defendant’s name in June of 2013 with an additional authorized user: Michelle Carter (Pl Exhs 1; Tr 35:22-24, 47:20, et seq.).3). Thousands of dollars were charged, and payments regularly made, on the account over the course of several years, until payments ceased and Plaintiff ultimately charged the account off on April 30, 2016 (Tr 24:24-25).Ironically, Defendant only learned of the account’s existence at this point, when her credit report reflected the charged-off account. Defendant immediately disputed having opened the account and filed a police report (Tr 63, et seq.; Def Exhs A-E). Plaintiff nonetheless rejected Defendant’s claims because, according to its investigation, all payments had been made from a Chase Bank account(s) which could be traced back to Defendant (Tr 14, 27, et seq.).However, Plaintiff’s post-trial submission lists only the routing number purported to be associated with Defendant’s account and the last four digits of two alleged account numbers without any further information, direct evidence, or testimony of an individual with personal knowledge tying the accounts to Defendant. Moreover, Plaintiff represents Defendant’s email to be [email protected] — again, without any proper evidentiary support — despite Defendant’s credible testimony that her email address is Laquandam[email protected] (Tr 65:2-8 [emphasis added]).Finally, the Court finds that Plaintiff did not credibly establish that it actually mailed any statements to Defendant, either by mail or email. Smith testified that statements were regularly sent to the address provided on the application: 159-30 Harlem River Drive, New York, New York, 10039, Apartment 2B, where Defendant has lived since 1982 (Tr 18:8-9, 59:5-6). Smith also testified that electronic statements are “automatic” and that there is no way to track whether statements were sent electronically (Tr 38:9-16, 41:10-13). Coupled with Plaintiff’s post-trial identification of an incorrect email address for Defendant, Smith’s testimony does not inspire confidence regarding his knowledge of Plaintiff’s procedures for transmitting statements, either generally or in Defendant’s case (Tr 65:2-8 [emphasis added]).Accordingly, and particularly in light of the disputes asserted by Defendant promptly after her account was charged off — in other words, when charge-off letters and/or litigation documents, as differentiated from automatic statements, would have alerted Defendant to the account — the Court credits Defendant’s testimony that she had not received prior statements.CONCLUSIONBased on the foregoing, it is herebyORDERED and ADJUDGED that the Clerk of Court shall enter judgment in favor of Defendant and the Complaint shall be dismissed; and it is furtherORDERED that the Clerk of Court shall send a copy of this decision to all parties forthwith.This constitutes the decision and order of the Court.Dated: New York, NYMarch 23, 2018
