Consumer Debt Defense Case Law: Capital One, N.A. v Benhong Xiao, 61 Misc 3d 135(A) (App Term 2018)
1. Breach of [Credit Card] Contract: At trial, plaintiff established its entitlement to judgment for breach of a credit card agreement by tendering sufficient evidence that there was an agreement, which defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by defendant when he failed to make the required payments.
2. Business Records: Contrary to defendant’s contention, plaintiff's business records were properly admitted pursuant to the business records exception to the hearsay rule. Plaintiff laid the proper foundation under CPLR 4518 establishing that the business records were kept in the regular course of business, that it was plaintiff’s regular course of such business to make such records, and that they were made at the time of the transaction. Plaintiff’s witness also testified that he had personal knowledge of plaintiff’s business practices and procedures, including when and how the credit card statements were made and kept.