MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2016	ME	117	 	
Docket:	      Yor-15-458	
Submitted	
  On	Briefs:	 June	22,	2016	
Decided:	     July	26,	2016	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 AMERICAN	EXPRESS	BANK	FSB	
                                             	
                                            v.	
                                             	
                                      DIANE	DEERING	
	
	
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	 court’s	 findings	 or	 evidentiary	

rulings,	and	we	affirm	the	judgment.	




   1		Deering	also	argues	that	the	court	erred	in	finding	that	the	parties	had	entered	into	a	binding	

contract	 and	 that	 American	 Express	 proved	 the	 amount	 due;	 that	 the	 court	 erred	 in	 permitting	
acceleration	 of	 the	 debt;	 and	 that	 “to	 the	 extent	 the	 district	 court	 relied	 upon	 Utah	 law,	 it	 is	
inappropriate	 in	 this	 case.”	 	 We	 are	 not	 persuaded	 by	 these	 arguments	 and	 do	 not	 address	 them	
further	in	this	opinion.	
2	

                                          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	Express’s]	

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	




     2		This	initial	two-year	delay	was	due	in	part	to	American	Express’s	inability	to	successfully	serve	

Deering	after	the	complaint	was	filed.		American	Express	ultimately	filed	proof	of	service	on	August	
6,	2012.	
                                                                                       3	

presented	 the	 testimony	 of	 one	 witness—agent	 and	 employee	 Edmond	

Garabedian.			

      [¶4]	 	 Because	 Deering	 challenges	 the	 court’s	 determination	 that	

American	 Express	 provided	 the	 required	 foundation	 for	 admission	 of	 the	

company’s	business	records,	we	review	Garabedian’s	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	
4	

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	 Garabedian’s	 testimony,	 American	 Express	 offered	 two	

exhibits	pursuant	to	the	business	records	exception	to	the	hearsay	rule:	sixty-

two	monthly	statements	documenting	Deering’s	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	
                                                                                       5	

American	 Express	 global	 mail	 services	 department,	 which	 sends	 the	

documents	 to	 Garabedian’s	 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	Deering’s	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	foundation	pursuant	to	the	business	

records	exception	and	admitted	both	of	the	exhibits.			

      [¶10]	 	 After	 trial,	 the	 court	 entered	 a	 written	 judgment	 in	 favor	 of	

American	 Express.	 	 The	 court	 made	 extensive	 factual	 findings,	 including	 the	

following.		Deering	obtained	a	Delta	SkyMiles	Credit	Card,	used	it	on	a	regular	
6	

basis,	 and	 made	 periodic	 payments	 up	 until	 the	 spring	 of	 2010.	 	 The	 card’s	

monthly	 statements	 were	 all	 sent	 to	 Deering	 at	 her	 address	 in	 Hollis	 Center.		

The	 statements	 detailed	 new	 charges,	 payments	 made,	 amounts	 due,	 and	

directions	as	to	what	the	cardholder	should	do	in	case	of	errors	or	questions.		

The	January	2009	statement	warned	Deering	that	her	account	was	“overdue.”		

Subsequent	 charges	 were	 made	 to	 the	 account.	 	 The	 August	 2009	 statement	

cautioned	 Deering,	 “Your	 account	 is	 over-limit	 and	 past	 due.”	 	 Several	

payments	were	then	made.		The	June	2010	statement	informed	Deering	that	

her	account	was	in	default	and	a	balance	of	$22,339.94	was	due	in	full.	

      [¶11]		Addressing	the	business	records	challenge,	the	court	found	that	

Garabedian	had	“demonstrated	an	intimate	and	extensive	knowledge	of	the	.	.	.	

operations,	 including	 the	 manner	 in	 which	 records	 are	 generated	 and	

maintained.”	 	 Based	 on	 Garabedian’s	 testimony,	 the	 court	 found	 that	 the	

records	constituted	a	data	compilation	of	acts	and	events	made	at	or	near	the	

time	 by,	 or	 from	 information	 transmitted	 by,	 a	 person	 with	 knowledge;	 that	

such	 data	 compilation	 was	 kept	 in	 the	 course	 of	 a	 regularly	 conducted	

business;	 and	 that	 it	 was	 the	 regular	 practice	 of	 American	 Express	 to	 make	

such	data	compilations.		See	M.R.	Evid.	803(6).		The	court	concluded	that	the	

records	 fell	 within	 the	 business	 records	 exception	 to	 the	 hearsay	 rule	 and	
                                                                                                        7	

admitted	 the	 records.	 	 See	 id.	 	 The	 court	 further	 concluded	 that	 American	

Express	 proved	 that	 Deering	 and	 American	 Express	 had	 entered	 into	 a	

contract	 and	 that	 Deering	 was	 obligated	 to	 pay	 the	 entire	 card	 balance	 of	

$22,339.94.3	 	 Deering	 timely	 appealed.	 	 See	 14	 M.R.S.	 §	1901	 (2015);	 M.R.	

App.	P.	2.			

                                          II.		DISCUSSION	

	        [¶12]	 	 Deering	 argues	 that	 the	 court	 erred	 in	 admitting	 the	 monthly	

statements	 and	 the	 credit	 card	 agreement	 pursuant	 to	 the	 business	 records	

exception	 to	 the	 hearsay	 rule.	 	 When	 admission	 of	 evidence	 under	 the	

business	 records	 exception	 to	 the	 hearsay	 rule	 is	 challenged,	 “we	 review	 a	

trial	court’s	foundational	findings	to	support	admissibility	for	clear	error	and	

its	ultimate	determination	of	admissibility	for	an	abuse	of	discretion.”		State	v.	

Abdi,	2015	ME	23,	¶	16,	112	A.3d	360.		“The	admissibility	of	a	business	record	

is	 governed	 by	 M.R.	 Evid.	 803(6),	 which	 dictates	 both	 (1)	 what	 foundation	

must	 be	 laid	 to	 admit	 such	 evidence	 as	 an	 exception	 to	 the	 rule	 excluding	

hearsay	 evidence,	 and	 (2)	 the	 type	 of	 witness	 required	 to	 lay	 that	




    3	
     	 The	 balance	 of	 $22,339.94,	 identified	 by	 American	 Express	 as	 owed	 on	 May	 17,	 2010,	
represents	 amounts	 charged	 by	 Deering,	 resulting	 interest	 on	 unpaid	 balances,	 and	 fees	 due	 to	
Deering’s	 failure	 to	 make	 timely	 payments.	 	 American	 Express	 did	 not	 seek	 additional	 interest	
during	or	after	trial,	and	the	court	did	not	award	any	additional	interest,	costs	or	legal	fees.	
8	

foundation.”4		Bank	of	Am.,	N.A.	v.	Greenleaf,	2014	ME	 89,	 ¶	 25,	 96	 A.3d	 700;	

see	 M.R.	 Evid.	 803(6)(D)	 (“All	 these	 conditions	 [must	 be]	 shown	 by	 the	

testimony	 of	 the	 custodian	 or	 another	 qualified	 witness	 .	.	.	.”).	 	 Deering	

primarily	 argues	 that	 Garabedian	 was	 not	 qualified	 to	 lay	 the	 foundation	 for	

entry	 of	 the	 documents	 pursuant	 to	 the	 business	 records	 exception	 to	 the	

hearsay	rule.5	


     4		The	business	records	exception	to	the	hearsay	rule	states:		


          (6)	 Records	 of	 a	 regularly	 conducted	 activity.	 	 A	 record	 of	 an	 act,	 event,	
               condition,	opinion,	or	diagnosis	[is	not	excluded	by	the	rule	against	hearsay]	if:		 	
          	
          	    (A)	 The	 record	 was	 made	 at	 or	 near	 the	 time	 by—or	 from	 information	
                    transmitted	by—someone	with	knowledge;	
	
          	    (B)	 The	 record	 was	 kept	 in	 the	 course	 of	 a	 regularly	 conducted	 activity	 of	 a	
                    business,	organization,	occupation,	or	calling,	whether	or	not	for	profit;		
          	
               (C)	 Making	the	record	was	a	regular	practice	of	that	activity;		
          	
          	    (D)	 All	 these	 conditions	 are	 shown	 by	 the	 testimony	 of	 the	 custodian	 or	
                    another	 qualified	 witness,	 or	 by	 a	 certification	 that	 complies	 with	 Rule	
                    902(11),	Rule	902(12)	or	with	a	statute	permitting	certification;	and		
          	
          	    (E)	 Neither	 the	 source	 of	 information	 nor	 the	 method	 or	 circumstances	 of	
                    preparation	indicate	a	lack	of	trustworthiness.	

M.R.	Evid.	803(6).			

     5	
     	 To	 the	 extent	 Deering	 argues	 that	 Garabedian	 failed	 to	 lay	 the	 proper	 foundation	 for	 the	
admission	of	the	documents,	the	record	supports	the	court’s	findings	that	Garabedian’s	testimony	
demonstrated	 that	 the	 records	 were	 made	 from	 information	 transmitted	 by	 someone	 with	
knowledge,	 see	 M.R.	 Evid.	803(6)(A);	 the	 record	 was	 kept	 in	 the	 course	 of	 a	 regularly	 conducted	
activity	 of	 a	 business,	 see	 M.R.	 Evid.	 803(6)(B);	 making	 the	 record	 was	 a	 regular	 practice	 of	 that	
activity,	 see	 M.R.	 Evid.	803(6)(C);	 and	 “[n]either	 the	 source	 of	 information	 nor	 the	 method	 or	
circumstances	of	preparation	indicate	a	lack	of	trustworthiness,”	see	M.R.	Evid.	803(6)(E).		Further,	
we	 are	 not	 persuaded	 by	 the	 argument	 that	 the	 unexplained	 omission	 of	 a	 few	 months	 of	
statements	 indicates	 a	 lack	 of	 trustworthiness	 that	 would	 prevent	 the	 documents	 from	 falling	
within	the	business	records	exception	to	the	hearsay	rule.			
                                                                                     9	

      [¶13]	 	 The	 foundation	 for	 the	 admission	 of	 records	 pursuant	 to	 the	

business	records	exception	“must	be	laid	by	a	witness	who	is	a	‘custodian	or	

another	 qualified	 witness.’”	 	 Homeward	 Residential,	 Inc.	 v.	 Gregor,	 2015	 ME	

108,	¶	14	n.11,	122	A.3d	947.		“A	qualified	witness	is	one	who	was	intimately	

involved	in	the	daily	operation	of	the	business	and	whose	testimony	showed	

the	firsthand	nature	of	his	or	her	knowledge.”		Id.	(quotation	marks	omitted).		

      [¶14]	 	 Here,	 Garabedian	 testified	 in	 extensive	 detail	 regarding	 his	

knowledge	of	the	daily	operations	and	record-keeping	practices	of	American	

Express.	 	 This	 is	 not	 a	 case	 where	 the	 witness	 laying	 the	 foundation	 for	

admission	 of	 the	 documents	 learned	 information	 regarding	 the	 operations	

and	the	records	secondhand,	see,	e.g.,	id.,	or	where	the	witness	failed	to	testify	

as	 to	 the	 source	 of	 her	 knowledge	 regarding	 the	 operations	 of	 the	 business	

and	testified	that	she	had	received	some	of	the	records	through	the	law	firm	

hired	to	represent	the	business,	see,	e.g.,	Greenleaf,	2014	ME	89,	¶	26,	96	A.3d	

700.		Instead,	Garabedian	testified	in	great	detail	as	to	his	involvement	in	the	

operations	 in	 the	 business	 over	 the	 past	 forty	 years	 and	 his	 firsthand	

knowledge	of	the	process	that	resulted	in	the	records	that	American	Express	

offered.		There	was	ample	competent	evidence	in	the	record	for	the	court	to	

find	 that	 Garabedian	 possessed	 personal	 knowledge	 and	 was	 “intimately	
10	

involved	in	the	daily	operation	of	the	business.”		Greenleaf,	2014	ME	89,	¶	25,	

96	 A.3d	 700	 (quotation	 marks	 omitted);	 see	 M.R.	 Evid.	 803(6)(D).	 	 Thus,	 the	

court	 did	 not	 err	 or	 abuse	 its	 discretion	 in	 admitting	 the	 documents	 over	

Deering’s	objections.		Cf.	Abdi,	2015	ME	23,	¶¶	19-20,	112	A.3d	360.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	    	     	      	      	      	
	
On	the	briefs:	
	
     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	
	
	
	
Biddeford	District	Court	docket	number	CV-2011-27	
FOR	CLERK	REFERENCE	ONLY	
