Band v. First Bankcard Center

644 So. 2d 211, 1994 WL 528487
CourtLouisiana Court of Appeal
DecidedSeptember 29, 1994
Docket94-CA-0601
StatusPublished
Cited by6 cases

This text of 644 So. 2d 211 (Band v. First Bankcard Center) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Band v. First Bankcard Center, 644 So. 2d 211, 1994 WL 528487 (La. Ct. App. 1994).

Opinion

644 So.2d 211 (1994)

David BAND, a Professional Law Corporation and David Band, Individually
v.
FIRST BANKCARD CENTER and First National Bank of Commerce.

No. 94-CA-0601.

Court of Appeal of Louisiana, Fourth Circuit.

September 29, 1994.
Rehearing Denied November 15, 1994.

*212 Sally A. Shushan, John W. Hite, III, Sessions & Fishman, New Orleans, for defendants/appellants.

Sally Dunlap Fleming, New Orleans, for plaintiffs/appellees.

Before KLEES, CIACCIO and WALTZER, JJ.

WALTZER, Judge.

STATEMENT OF THE CASE

David Band, a Professional Law Corporation (BPLC) and David Band (Band), individually, filed suit on 29 July 1993 against First Bankcard Center (FBC) and First National Bank of Commerce (FNBC), seeking the return of sums paid to defendants upon allegedly unauthorized charges on BPLC's credit card, attorneys' fees under the Truth-in-Lending Act (15 U.S.C. § 1601 et seq.), and consequential damages arising out of defendants' alleged negligence. On 15 September 1993, counsel for BPLC and Band paid for and requested service on defendants through their alleged agent for service of process, Andrew Blanchfield.[1] No responsive pleadings *213 having been filed by either defendant, on 12 November 1993, a preliminary default was entered in favor of BPLC against FNBC and FBC. On 17 November 1993, a preliminary default was entered in favor of Band and BPLC against FNBC and FBC.

On 23 November 1993, judgment was entered:

1] in favor of BPLC and against FBC and FNBC for $18,510.71 in unauthorized charges for which defendants received payment from BPLC;

2] in favor of Band and BPLC ordering "all credit bureaus and other credit reporting services" to delete any derogatory reports in their records concerning any delinquencies of Band or BPLC arising out of Band's handling of his corporate credit card "or any other accounts which are the subject of this litigation", and ordering these entities to correct such derogatory reports; and

3] awarding damages to Band, individually, for consequential damages for defendants' tort negligence in the amount of $15,000, plus attorneys' fees in the amount of $1250 and for all costs of the proceeding. Defendants appealed.

STATEMENT OF FACTS

At the hearing on the confirmation of the default, Band was the sole witness. He testified that he discovered in March, 1993 that his secretary had been using his corporate Visa account, making approximately $5000 a month in unauthorized charges. This amount is not supported by the documentary evidence submitted at the hearing.

Band's testimony concerning the secretary's alleged criminal history was muddled; he testified that she had been convicted earlier in 1990, then testified that she had served seven years in St. Gabriel prison. He produced no criminal records to support this hearsay testimony. Band denied he knew of her purported criminal record when he hired her, and claimed to have checked her references, having determined that she had worked for a prominent local attorney, Frederick Gisevius.

Band testified that she suggested in May of 1992 that he should close the corporate account, which he did. Nonetheless, he continued to pay monthly statements rendered by defendants for the secretary's continued use of the card, in the belief that these charges arose out of a "personal check with them [defendants]." Band testified that from April 1992 through March 1993, the secretary's unauthorized charges totaled $21,913.79 of which he paid $18,510.71.

Band testified that when he discovered the fraud in March, 1993, he confronted the secretary, who promised full restitution. Band testified that he advised defendants of the nature of the fraud that had been effected by the secretary. He testified further that when they called his office the secretary, whom he had not yet fired, told them that Band had given her permission to make the charges. Band presented no foundation for this hearsay testimony. He testified further that the defendants then refused to return the sum he paid on the unauthorized charges or to remove the remaining balance on his corporate account representing unpaid and unauthorized charges.

Band testified that defendants reported his account in "past-due" status to the Credit Bureau, as a result of which he personally was unable to refinance the debt secured by a mortgage on his home and was unable to obtain a MasterCard credit card offered by his insurance company. He obtained a copy of his credit reports, and noted an inscription by FNBC of "excessive credit obligations." The Credit Bureau marked FNBC's inscription "disputed." There was no evidence that the post-May 1992 credit status of the corporate credit card that is the subject of this suit formed the basis for any of the denials of credit to Band and his wife, individually. Likewise, there is no evidence that the Band law corporation requested credit and was denied credit based on the allegedly fraudulent and unauthorized charges on the corporate account. The copies of his personal credit reports were not authenticated.

Band introduced exhibits at the default confirmation in support of his allegation that *214 he had been denied credit.[2] Band did not offer any foundation to authenticate any of these exhibits. Neither was there evidence to support the claim that the corporate credit account's status was the basis for the Bands' negative personal credit history upon which these denials of credit were based. Indeed, the record is devoid of any comment by the trial judge tending to show that the documents were received into evidence.

Band also introduced copies of his letters of 24 June 1993 and 22 July 1993 to Equifax Credit Information Service outlining his version of the fraud perpetrated by his secretary. These letters formed part of the in globo offer made by counsel for petitioners, but the record does not contain any evidence that these documents were received into evidence by the trial judge.

The exhibits submitted by BPLC to prove its claim of fraudulent unauthorized use of its credit card included photocopies that purported to be copies of FBC statements.[3]

*215 Neither this court nor the trial court would be able to determine from these statements if the merchandise represented thereon was for business use or was for the personal benefit of the secretary. In no month did the charges, authorized or not, approach the $5,000 per month testified to by Band. These documents were offered as part of the in globo submission by counsel, but the record does not reflect that the trial court admitted any of the documents as evidence.

The record also contains copies of checks drawn on the account of "David Band, A Professional Law Corporation Office and General Account,"[4] "David Band Personal Account"[5] and "David Band Property Management *216 Account,"[6] which appear to be signed but were not authenticated at the confirmation hearing. These checks were not specifically identified in Band's testimony, and the exhibits are merely photocopies of the face of the checks, without any evidence showing that the checks were ever negotiated. Neither was there any testimony to prove when the notations appearing on the face of the checks were made, or by whom, or as to what the notations might signify.

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Bluebook (online)
644 So. 2d 211, 1994 WL 528487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/band-v-first-bankcard-center-lactapp-1994.