[gwop]

Sadly enough someone who I had recently met, but who had been at my apt several times within the last couple of months decided during his last visit that he was going to take my brand new iPhone. It was just the two of us in my apt and he was using the phone to take pictures.. . next thing I know he was gone, the apt door was open and the phone was of course gone with him. At first I thought he had gone to smoke a cigarette, but when I tried calling my phone and it had been turned off, I realized he had taken off with it.

I went to the local precinct to file a report and explained the facts. I was told, "did you see him leave with your phone? Because if you didn't actually see him leave with the phone then you can't say it was him!".. . Really? Is this is really how things work? It was just the two of us in my apartment, not like we're hanging at the mall where anybody walking by could have picked it up, but in the end the Officer didn't want me to file against this guy.

Question #1 Was the Officer correct or was he just being lazy and didn't want to file a report?

Question #2 American Express Purchase Protection Policy lists among the exclusions:

Negligent Failure of a duty to care by any third party in whose possession the property purchased by a Cardmember has been temporarily placed

Not being reasonably safeguarded by you

Would either of these two causes be applicable to my case? Can Amex reject my claim based on these two exclusions?

[JudyKayTee]

This doesn't seem to be a question about Corporate Law.

Whether the Police Officer was correct is immaterial. The advice he gave you is correct - did you see your friend leaving with your cell phone? If you did, file charges.

I'd say it's half and half - you were negligent AND a third party was negligent with your phone.

What does American Express say?

[keithbarlow]

It seems that you have a suspicion he stole your Iphone, This would not rise to the level of a very strong case although I suppose you could bring an action in small claims court and maybe the defendant will make an admission.

[AK lawyer]

Question #1 Was the Officer correct or was he just being lazy and didn't want to file a report?

The officer was correct in his ultimate conclusion: that the story doesn't justify that charges be filed against your former friend. You apparently were stoned, drunk, asleep, or some combination of the three, otherwise it wouldn't have been a situation of "next thing he was gone". You would have known when he left. You simply are not a credible witness.

Question #2 American Express Purchase Protection Policy lists among the exclusions:

Negligent Failure of a duty to care by any third party in whose possession the property purchased by a Cardmember has been temporarily placed

Not being reasonably safeguarded by you

Would either of these two causes be applicable to my case? Can Amex reject my claim based on these two exclusions?

The first exclusion would't apply. Your former friend didn't fail to care for the phone; he apparently stole it.

The second one is closer, but letting a friend play with your phone in your home would not, in my opinion, constitute a failure on your part to reasonably safeguard it.

File the claim.

[JudyKayTee]

It seems that you have a suspicion he stole your Iphone, This would not rise to the level of a very strong case although I suppose you could bring an action in small claims court and maybe the defendant will make an admission.

I disagree - lower standard of proof in Small Claims Court. OP had the phone, friend used the phone, friend left - no phone!

I don't think the OP needs an admission. I think it's going to be Small Claims Court "evidence." The Judge is going to believe one of them.

[gwop]

Thank you all for your input, although I am still a little confused as to why is my credibility is being questioned. I understand that technically unless the individual is seen walk away with something that does not belong to them, one cannot state without any reasonable doubt that they stole, but isn't that the definition of stealing? "To take (the property of another or others) without permission or right, especially secretly?"

I was sitting at my desk in the bedroom finishing up on some work and he was out of my sight in the hallway taking pictures. This happened around 11:30 am and I was neither drunk, high, or asleep. What would be my motive for making such a claim had he not taken my phone? He left quietly without saying a word leaving my apartment door unlocked. He blocked me from contacting him online and refused to take my calls. When I tried to trace my phone online, the phone had been switched off and the SIM card removed so it could not be traced. He even had the courage to post online one of the pictures he had taken with my phone in my apartment. That picture has since been taken down, but how could he have had access to that pic had he not taken the phone?

In any case, I haven't contacted AmEx yet, because they require a police report. On the other hand, I do not want to go waste my time to go file a report that would not lead nowhere, but ultimately blame me for allowing this petty theft by an unknown individual.

[AK lawyer]

Thank you all for your input, although I am still a little confused as to why is my credibility is being questioned. I understand that technically unless the individual is seen walk away with something that does not belong to them, one cannot state without any reasonable doubt that they stole, but isn't that the definition of stealing? "To take (the property of another or others) without permission or right, especially secretly?"

I was sitting at my desk in the bedroom finishing up on some work and he was out of my sight in the hallway taking pictures. This happened around 11:30 am and I was neither drunk, high, or asleep. What would be my motive for making such a claim had he not taken my phone? He left quietly without saying a word leaving my apartment door unlocked. He blocked me from contacting him online and refused to take my calls. When I tried to trace my phone online, the phone had been switched off and the SIM card removed so it could not be traced. He even had the courage to post online one of the pictures he had taken with my phone in my apartment. That picture has since been taken down, but how could he have had access to that pic had he not taken the phone?

In any case, I haven't contacted AmEx yet, because they require a police report. On the other hand, I do not want to go waste my time to go file a report that would not lead nowhere, but ultimately blame me for allowing this petty theft by an unknown individual.

I aplogize for my previous comments. Now that you put it that way, it seems more likely that AmEx will determine that you acted reasonably.

The police have discretion whether to prosecute a case. Perhaps it was the way you explained it to them. Perhaps the officer did not want to be bothered. But if, as I understand you, you reported the incident to the police, there should be a police report. Get a copy and make the claim.

[JudyKayTee]

Thank you all for your input, although I am still a little confused as to why is my credibility is being questioned.

Did you think I was questioning your credibility? I said: "I disagree - lower standard of proof in Small Claims Court. OP had the phone, friend used the phone, friend left - no phone!"

I think that's pretty clear that I think your friend stole your phone and also that I don't think a Police Report is necessary if you file in Small Claims Court.

[gwop]

I appreciate the support and although it's been almost a year since I first posted that question, I wanted to inform you that in the end AmEx policy only covers brand NIB products, excluding manufacturer refurbished items. The phone was new to me, but it was Apple refurbished and although Apple tests and certifies all refurbished products to include a full 1-year warranty AmEx would have still rejected the claim.

Small Claims is a great concept, but unless you know everything about the person you are suing it is pretty much worthless when it comes to claiming your judgment. I won a $5500 judgement in 2009 of which I never saw a penny. So I've given up on that idea.

Thank you again for your support and for taking the time to address my questions.

[JudyKayTee]

Hardly anyone EVER comes back with the outcome - your experience will certainly be helpful to the "next person."

Thank you so much!

I hope you stick around and answer questions - you'd be much appreciated.