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

      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016       Page 2 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016        Page 3 of 7
                                                   *****

              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



      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016   Page 5 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016              Page 6 of 7
       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.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016                 Page 7 of 7
