Jose Menendez v. CACH, LLC (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 23 2016, 9:33 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jose Menendez Greg Taylor Fishers, Indiana Megan Urban Jason Taylor Taylor Law, PLLC Louisville, Kentucky

IN THE COURT OF APPEALS OF INDIANA

Jose Menendez, August 23, 2016 Appellant-Defendant, Court of Appeals Case No. 29A02-1511-CC-2026 v. Appeal from the Hamilton Superior Court CACH, LLC, The Honorable David K. Najjar, Appellee-Plaintiff. Magistrate The Honorable Steven R. Nation, Judge Trial Court Cause No. 29D01-1407-CC-6967

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 1 of 7

Case Summary [1] Jose Menendez appeals the trial court’s grant of summary judgment in favor of

CACH, LLC on its complaint for collection of credit-card debt. CACH alleged

that Menendez owed $13,815.13 to Bank of America and that CACH was the

assignee of that debt. Menendez, pro se, contends that the evidence CACH

designated to prove that he owed $13,815.13 was inadmissible and, therefore,

should not have been considered by the trial court at summary judgment. We

agree. Among other things, CACH attempted to use the affidavit of its own

employee to provide an evidentiary foundation for admitting records prepared

by Bank of America. However, a witness cannot lay the proper foundation to

admit the records of a business other than his or her own employer because he

or she will lack the personal knowledge required to ensure reliability. We

therefore reverse the trial court’s grant of summary judgment in favor of CACH

and remand for further proceedings.

Facts and Procedural History [2] On July 21, 2014, CACH filed a complaint against Menendez alleging that

Menendez had defaulted on $13,815.13 in credit-card debt owed to MBNA

America, N.A.,1 that CACH was the assignee of the debt, and that CACH was

1 Menendez opened the credit card with MBNA. MBNA became FIA Card Services, N.A. FIA Card Services merged into BANA, which is a wholly-owned subsidiary of Bank of America. As a result of the name changes and mergers, different documents refer to MBNA, FIA, BANA, and Bank of America. We

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entitled to judgment for $13,815.13. CACH also sought judgment for interest

and costs. [3] In February 2015, CACH moved for summary judgment. CACH designated as

evidence several credit-card statements for Menendez; the bill of sale and

assignment of loans that transferred ownership of multiple loans to CACH;

“Schedule 1,” which is a printout of a portion of the record supplied to CACH

by Bank of America that contains Menendez’s credit-card information,

including his name, address, social-security number, and balance due; and an

affidavit. The affidavit CACH submitted was executed by Signe Espinoza, an

agent and records custodian for CACH, and it provides, in pertinent part:

1. I have reviewed the books and records of Plaintiff and am familiar with the account of JOSE M MENENDEZ (the “Defendant”). Plaintiff’s books and records contain account records and information of the account referenced below provided to Plaintiff by the Original Creditor referenced below or its assignee. The records are kept in the ordinary course of a regularly conducted business activity and are made either by a person having personal knowledge of the information contained therein or based on information conveyed by a person having personal knowledge of the information contained therein, and I know from my experience in reviewing such records and from common knowledge of how credit cards work that those records are made and maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event that they record.

will use the names MBNA and Bank of America throughout the opinion, but there is only one credit card— the multiple bank names are merely the result of transfers in ownership.

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*****

3. The business records furnished to Plaintiff show that Defendant opened a credit card account with [Bank of America] (“Original Creditor”) bearing account number XXXX-XXXX- XXXX-9092 (the “Account”). The last payment was posted to the account on April 25, 2011 in the amount of $25.00.

*****

7. There is now due and payable from the Defendant the sum of $13,815.13 in addition to costs.

[4] In his summary judgment response and at the summary judgment hearing,

Menendez argued that the evidence CACH designated would not be admissible

at trial and, therefore, should not be considered at summary judgment. After

oral argument, the trial court entered summary judgment for CACH.

Menendez now appeals.

Discussion and Decision [5] Menendez contends that the trial court erred in granting summary judgment to

CACH. We review an order granting summary judgment de novo. Williams v.

Tharp, 914 N.E.2d 756, 761 (Ind. 2009). Summary judgment is appropriate if

there is no genuine issue as to any material fact and the moving party is entitled

to a judgment as a matter of law. Ind. Trial Rule 56(C). The party moving for

summary judgment bears the burden of making a prima facie showing that it is

appropriate. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270

(Ind. 2009).

Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 4 of 7 [6] In this case, CACH needed to show that (1) Menendez owed $13,815.13 to

Bank of America and (2) CACH was the assignee of that debt. See Seth v.

Midland Funding, LLC, 997 N.E.2d 1139, 1140 (Ind. Ct. App. 2013). The

dispositive issue in this case is whether CACH designated sufficient evidence to

show the first element, that is, whether Menendez owed Bank of America

$13,815.13. CACH designated three pieces of evidence to prove this element:

(1) credit-card statements, (2) Schedule 1, and (3) Espinoza’s affidavit. [7] Menendez, however, argues that these three pieces of evidence would not have

been admissible at trial; therefore, the trial court’s grant of summary judgment

was improper. We agree. In ruling on a motion for summary judgment, the

trial court will consider only properly designated evidence that would be

admissible at trial. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind. Ct. App.

1996), trans. denied. Unsworn statements and unverified exhibits do not qualify

as proper Rule 56 evidence. Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge,

Inc., 973 N.E.2d 1179, 1182 (Ind. Ct. App. 2012), trans. denied. [8] The first two pieces of evidence, the credit-card statements and Schedule 1,

were unsworn and unverified records prepared by Bank of America. In order to

admit these two pieces of evidence as business records at trial, CACH would

have needed an affidavit or testimony from a Bank of America employee stating

that the records were prepared at or near the time of the transactions by, or

from information transmitted by, someone with knowledge of the transaction;

that the records were kept in the course of a regularly conducted activity of the

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business; and that making the records was a regular practice of that activity.2

See Ind. Evidence Rule 803(6). The affidavit of CACH’s own employee would

have been insufficient to admit the credit-card statements or Schedule 1 at trial.

Speybroeck v. State, 875 N.E.2d 813, 821 (Ind. Ct. App. 2007) (“a business could

not lay the proper foundation to admit the records of another business because

the requesting business lacked the personal knowledge required to ensure

reliability”). [9] The Espinoza affidavit would also have been inadmissible at trial for the

purpose of establishing the debt Menendez owed to Bank of America. Indiana

Trial Rule 56(E) requires that “[s]upporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible

in evidence, and shall show affirmatively that the affiant is competent to testify

to the matters stated therein.” The requirements of T.R. 56(E) are mandatory.

City of Gary v. McCrady, 851 N.E.2d 359, 363 (Ind. Ct. App. 2006). A court

considering a motion for summary judgment must disregard information

contained in supporting or opposing affidavits that would not be admissible at

trial. See id. Nothing in the record establishes that Espinoza had personal

knowledge of the transactions between Menendez and Bank of America.

Espinoza’s affidavit is based on her reading of what Bank of America’s records

2 CACH included an affidavit from a Bank of America employee in the Appellee’s Appendix. However, according to CACH’s response to Menendez’s motion to strike this affidavit, it was not designated to the trial court. We do not consider evidence on appeal that was not properly designated to the trial court. P.R. Mallory & Co. v. Am. Cas. Co. of Reading, Pa., 920 N.E.2d 736, 755 (Ind. Ct. App. 2010), trans. denied.

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indicate, not her personal knowledge. Appellee’s App. p. 53. Therefore, to the

extent that Espinoza’s affidavit must be relied upon to establish Menendez’s

underlying debt to Bank of America, it would be inadmissible at trial.3 [10] There being no properly designated evidence that would be admissible at trial to

prove that Menendez owed the original credit-card debt of $13,815.13, CACH

was not entitled to summary judgment. [11] We reverse and remand for further proceedings.

Baker, J., and Najam, J., concur.

3 CACH asserts that Espinoza’s affidavit is admissible to prove the original debt because “the Plaintiff has integrated the original creditor’s record into its own and relies on it in collecting the debt.” Appellee’s Br. p. 13. CACH provides no citation for this assertion. It is well settled that we will not consider an assertion on appeal when the party has not presented a cogent argument supported by authority and references to the record as required by the rules. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). We are aware that some federal circuits have allowed authentication of third-party business records under Federal Rule of Evidence 803(6). However, CACH does not argue that Indiana Rule of Evidence 803(6) should be interpreted the same way or that Espinoza’s affidavit would be sufficient if we did adopt this interpretation of the rule.

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