                                                                            Nov 08 2013, 5:28 am
FOR PUBLICATION




APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

HITESH SETH                                       GLENN S. VICIAN
Muncie, Indiana                                   CHRISTOPHER M. MANHART
                                                  Bowman, Heintz, Boscia & Vician, P.C.
                                                  Merrillville, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

HITESH SETH,                                      )
                                                  )
      Appellant-Defendant,                        )
                                                  )
             vs.                                  )     No. 48A05-1303-CC-110
                                                  )
MIDLAND FUNDING, LLC, as an Assignee of           )
Columbus Bank and Trust as Issuer of Aspire Visa, )
                                                  )
      Appellee-Plaintiff.                         )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Dennis D. Carroll, Judge
                           Cause No. 48C06-1110-CC-1462



                                     November 8, 2013


                             OPINION - FOR PUBLICATION


NAJAM, Judge
                           STATEMENT OF THE CASE

      Hitesh Seth appeals the trial court’s entry of summary judgment in favor of

Midland Funding, LLC (“Midland”) on Midland’s complaint against Seth for

nonpayment of credit card debt. Seth presents a single dispositive issue for our review,

namely, whether the trial court erred when it concluded that Midland had satisfied its

burden of proof under Trial Rule 56(C).

      We reverse and remand.

                      FACTS AND PROCEDURAL HISTORY

      On October 26, 2011, Midland filed a complaint against Seth alleging breach of a

credit card contract and seeking damages in the amount of $3,410.87, plus interest and

costs. Midland filed an amended complaint on December 5. Midland then moved for

summary judgment, which the trial court granted following a hearing. This appeal

ensued.

                           DISCUSSION AND DECISION

      Our standard of review for summary judgment appeals is well established:

      When reviewing a grant [or denial] of summary judgment, our standard of
      review is the same as that of the trial court. Considering only those facts
      that the parties designated to the trial court, we must determine whether
      there is a “genuine issue as to any material fact” and whether “the moving
      party is entitled to a judgment as a matter of law.” In answering these
      questions, the reviewing court construes all factual inferences in the non-
      moving party’s favor and resolves all doubts as to the existence of a
      material issue against the moving party. The moving party bears the
      burden of making a prima facie showing that there are no genuine issues of
      material fact and that the movant is entitled to judgment as a matter of law;
      and once the movant satisfies the burden, the burden then shifts to the non-
      moving party to designate and produce evidence of facts showing the
      existence of a genuine issue of material fact.


                                           2
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009)

(citations omitted). The party appealing a summary judgment decision has the burden of

persuading this court that the grant or denial of summary judgment was erroneous.

Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App.

2009).

         Seth contends that Midland did not satisfy its burden of making a prima facie

showing that there are no genuine issues of material fact and that it is entitled to judgment

as a matter of law. In particular, Seth maintains that much of Midland’s designated

evidence is inadmissible hearsay or otherwise insufficient to support summary judgment.

We must agree.

         In order to make its prima facie case in support of summary judgment, Midland

was required to show that Seth had opened a Visa account with Columbus Bank and

Trust, that Midland was the assignee of that debt, and that Seth owed Columbus Bank

and Trust the amount alleged in the complaint. Midland’s designated evidence consisted

of the following: a document entitled “Assignment of Accounts” (“the Assignment”)

executed by Andrew Carlson of Jefferson Capital Systems, LLC (“Jefferson”) and J.

Brandon Black of Midland dated September 10, 2007; an affidavit executed by Carlson

and dated October 20091, which includes an attachment identified as “Schedule 1”; an

“Affidavit of Debt” executed by Erin Degel; an uncertified and unsworn nine-page

document entitled “Transaction History”; an uncertified and unsworn copy of a credit




         1
             Seth’s contention that Carlson’s affidavit is dated 2004 is simply without merit.

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card statement; an uncertified, unsworn, and largely illegible2 copy of the terms of the

credit card agreement; and an unidentified, uncertified, and unsworn document with no

title, but with the words “Field” and “Field Data” typed at the top of the page.

        In ruling on a motion for summary judgment, the trial court will consider only

properly designated evidence which 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. Thus, here, the two affidavits from Carlson and Degel are the only potentially

proper Rule 56 evidence designated by Midland. We agree with Seth that the affidavits

are insufficient to support summary judgment.3

        First, the Carlson affidavit is too vague to support Midland’s contentions in

support of summary judgment. Carlson’s affidavit provides as follows:

        1. I am the Manager of Portfolio Sales for Jefferson Capital Systems, LLC.
        I have personal knowledge of the information contained herein and am
        authorized to make the following statements and representations.

        2. CompuCredit Corporation is the parent corporation to Jefferson Capital
        Systems, LLC (“Jefferson”).

        3. CompuCredit Corporation acquired certain Aspire Visa, Emerge
        Mastercard and Freedomcard Mastercard credit card accounts issued by
        Columbus Bank and Trust Company.



        2
            The font is so small as to make it nearly impossible to read the terms of the agreement.
        3
          We reject Seth’s contention that Midland is required to prove that he signed an agreement to
open a credit card account. See Meyer v. National City Bank, 903 N.E.2d 974, 976 (Ind. Ct. App. 2009)
(holding credit card agreements are contracts, and the issuance and use of a credit card creates a legally
binding agreement).
                                                      4
      4. Once the accounts owned by CompuCredit Corporation are charged-off,
      the accounts are subsequently transferred and assigned to Jefferson Capital
      Systems, LLC (“Jefferson”).

      5. Jefferson subsequently sold many of the accounts to Midland Funding,
      LLC. The sale was consummated with an Assignment of Accounts.
      Individual accounts sold would not be specifically itemized in the
      Assignment document.

      6. The initial sale of accounts took place and accounts were transferred on
      June 7, 2005 from Jefferson to Midland Funding, LLC. Jefferson also sells
      accounts to Midland Funding, LLC each month.

      7. The associated bin (456419) associated [sic] with the Columbus Bank
      and Trust Company accounts are attached hereto as Schedule 1.

      8. All information regarding the credit card accounts is transmitted
      electronically to the purchasers and is not transmitted in a paper file format.
      The electronic transmission contains all the accounts that were part of the
      sale to the purchasers.

Appellant’s App. at 20 (emphases added). “Schedule 1,” attached to Carlson’s affidavit,

merely confirms the “BIN” number of the “Aspire VISA Gold” accounts that originated

with Columbus Bank. Id. at 21. Nothing in either Carlson’s affidavit or in the Schedule

1 document contains Seth’s name or account number. In other words, this designated

evidence does not show that Midland owns Seth’s credit card account, only that it

acquired “certain” accounts issued by Columbus Bank. See id. at 20.

      Next, Seth maintains that, in her affidavit, Degel

      purports to testify to acts and events that allegedly occurred between Seth
      and Columbus between September 2002 and August 2007. . . . Midland did
      not attach any evidence that the affiant was ever employed with Columbus
      or Jefferson, and therefore cannot possibly have personal knowledge of
      how Columbus’ or Jefferson’s records were prepared and maintained, and
      is unqualified to testify as to the truth of the information contained in the
      Affidavit.



                                            5
Brief of Appellant at 27-28. In short, Seth contends that Degel’s affidavit is not based

upon personal knowledge, as required by Trial Rule 56(E). But Midland maintains that

Degel established an “adequate foundation” for her affidavit when she stated that she is

“familiar with the record keeping practices of Midland, . . . has reviewed records kept in

the normal course of business, and . . . makes the statements in her affidavit based upon

personal knowledge of those account records.” Brief of Appellee at 13. We agree with

Seth.

        Degel’s affidavit reads in relevant part as follows:

        I, Erin Degel, am an employee of Midland Credit Management, Inc.
        (“MCM”), servicing agent for plaintiff.          I am familiar with the
        recordkeeping practices of MCM. I have reviewed records kept in the
        normal course of MCM’s business, and make the statements herein based
        upon personal knowledge of those account records maintained on plaintiff’s
        behalf.
        SETH/HITESH, Defendant, has an account balance of $3410.87, which is
        owed to the Plaintiff on account XXXXXXXXXXXX4841.
        The account was opened on 2002-09-23. The last payment posted to the
        account on 2006-12-22 and the amount is unknown.
        The type of account is: Credit card account (i.e. Visa, MasterCard,
        Department Store, etc.)
        The Plaintiff:
        Has obtained this debt from JEFFERSON CAPITAL SYSTEMS, LLC and
        the original creditor of this debt was COLUMBUS BANK AND TRUST.
        The account balance includes:
        MCM’s records indicate that there are no late fees after 2007-09-10.
        Interest at a rate of 0.00% beginning on 2010-07-06.
        The Plaintiff:
        May be seeking attorney’s fees and additional evidence will be presented to
        the court prior to entry of judgment on attorney’s fees, if requested in the
        Complaint or Notice of Claim.

Appellant’s App. at 23 (emphasis added).

        Trial Rule 56(E) provides in part that supporting and opposing affidavits on

summary judgment shall be made on personal knowledge and shall set forth such facts as
                                              6
would be admissible in evidence. We agree with Seth that Degel’s employment with

Midland’s servicing agent, MCM, does not establish her personal knowledge of any of

the facts pertaining to Midland’s complaint against Seth. Indeed, Degel states that she

based her affidavit on her “personal knowledge of those account records maintained” by

MCM on Midland’s behalf. Id. Because her knowledge of the facts is limited to what

she has gleaned from her review of unspecified business records, her affidavit is based

entirely upon hearsay, in violation of Trial Rule 56(E). See Breining v. Harkness, 872

N.E.2d 155, 158 (Ind. Ct. App. 2007) (holding inadmissible hearsay contained in an

affidavit may not be considered in ruling on a summary judgment motion), trans. denied.

And, contrary to Midland’s contention on appeal, the business records exception,

Evidence Rule 803(6), does not apply here because Degel’s affidavit does not purport to

authenticate any business records, which is the sole function of that exception.

       Moreover, Trial Rule 56(E) also requires that a party submitting an affidavit on

summary judgment attach “sworn or certified copies not previously self-authenticated of

all papers or parts thereof referred to in an affidavit[.]” Because Degel explicitly states

that her affidavit is based upon her personal knowledge of facts obtained from business

records maintained by Midland, she was required to attach to her affidavit sworn,

certified, or self-authenticated copies of any of the business records she relied upon. The

requirements of T.R. 56(E) are mandatory; hence, a court considering a motion for

summary judgment should disregard inadmissible information contained in supporting or

opposing affidavits. City of Gary v. McCrady, 851 N.E.2d 359, 363 (Ind. Ct. App.

2006). But, critically, Degel did not attach to her affidavit any of the records upon which


                                             7
she purported to rely. Because Degel’s affidavit does not comply with Trial Rule 56(E),

we must disregard it.

       We hold that Midland has failed as a matter of law to designate evidence to make

a prima facie case that it is entitled to summary judgment on its complaint. Accordingly,

the burden of proof did not shift to Seth to show that there exist questions of material fact

precluding summary judgment. We reverse the trial court’s entry of summary judgment

and remand for further proceedings.

       Reversed and remanded.

MATHIAS, J., and BROWN, J., concur.




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