MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Jun 15 2016, 6:47 am

court except for the purpose of establishing                      CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John William Davis, Jr.                                  Alice J. Springer
Davis & Roose                                            Barnes & Thornburg LLP
Goshen, Indiana                                          Elkhart, Indiana
                                                         Timothy J. Abeska
                                                         Barnes & Thornburg LLP
                                                         South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jolena K. Plaut, Known Heir                              June 15, 2016
and Personal Representative of                           Court of Appeals Case No.
the Estate of Beulah Jane                                90A05-1509-MF-1390
Enderle, a/k/a Beulah Jane                               Appeal from the
Hunt, Deceased,                                          Wells Circuit Court
Appellant-Defendant,                                     The Honorable
                                                         Kenton W. Kiracofe, Judge
        v.                                               Trial Court Cause No.
                                                         90C01-1011-MF-107
Wells Fargo Bank, N.A.,
Appellee-Plaintiff.




Kirsch, Judge.



Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 1 of 24
[1]   Wells Fargo Bank, N.A. (“Wells Fargo”) filed an action to foreclose a mortgage

      on property (“the Property”) located at 3079 N. 450 E., Bluffton, Indiana,

      which was owned by Beulah Jane Enderle (“Enderle”) and her sister Annabel

      Snider (“Snider”), both now deceased.1 Jolena K. Plaut (“Plaut”), known heir

      and alleged personal representative2 of Enderle’s estate, appeals the trial court’s

      in rem foreclosure judgment in favor of Wells Fargo and raises the following

      restated and reordered issues:


               I. Whether the trial court erred in finding that Wells Fargo was
               the appropriate party to foreclose the mortgage on the Property;
               and


               II. Whether the trial court erred by granting summary judgment
               in favor of Wells Fargo when that decision rested, in part, on
               designated evidence that was improperly admitted into evidence.


[2]   We affirm.




      1
       The following were also named as defendants in Wells Fargo Bank’s foreclosure action: The Unknown
      Heirs and Devisees of Annabel Snider (the sister of Beulah Jane Enderle), Deceased, Capital One Bank
      (USA), N.A., Discover Bank, Mark T. Hunt, Jefferson W. Hunt, Gary W. Hunt, Marcy R. Hunt, and Ann
      Lee Zoll. However, none of those parties participated in this appeal.
      2
       The caption includes the notation that Jolena K. Plaut is the personal representative of the estate of her
      mother, Beulah Jane Enderle. It is not clear whether that is correct. Wells Fargo alleges in its complaint that
      Plaut was named the personal representative of Enderle’s estate under Cause Number 90C01-0708-ES-14,
      Appellant’s App. at 7; however, during the summary judgment hearing, Plaut’s counsel clarified that Plaut
      “was never appointed personal representative of the estate. She’s an heir or devisee like her sister.” Tr. at 15.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016                Page 2 of 24
                                 Facts and Procedural History
[3]   The relevant facts are largely undisputed. On September 27, 2004, Snider

      borrowed $48,300 from nBank, N.A. (“nBank”) and executed and delivered to

      nBank a promissory note (“Note”) in that principal sum. The loan was to be

      repaid over a period of thirty years, through monthly installments, at a fixed

      rate of interest of 6.5%, beginning November 1, 2004; “the principal and

      interest component of that installment payment was $305.29 per month.” Tr. at

      5. Under the terms of the Note, a single untimely payment would constitute

      default. Appellant’s App. at 12. Subsequently, the Note was transferred from

      nBank to Wells Fargo, where it was “endorsed in blank,” making it “payable to

      bearer.” 3 Appellant’s Br. at 8.


[4]   Also on September 27, 2004, Enderle and Snider executed a mortgage (“the

      Mortgage”), using the Property as security for the repayment of the loan. The

      Mortgage described the Property as follows

              That portion of land situate [sic] in the Southeast Quarter of
              Section 14, Township 27 North, Range 12 East of the Second
              Principal Meridian in Wells County, Indiana, being described as
              follows: Co[n]sidering the West line of the Southeast Quarter as
              bearing North 00 degrees 00 minutes 00 seconds West with all
              other bearings herein contained relative thereto; Beginning at a
              found monument at the Southwest corner of the Southeast



      3
       The Note was endorsed by nBank with the notation, “Pay to the Order of Wells Fargo Bank, N.A. Without
      Recourse, nBank, N.A.” Appellant’s App. at 13. A Wells Fargo Vice President of Loan Documentation
      endorsed the Note in blank with the following notation: “WITHOUT RECOURSE, PAY TO THE
      ORDER OF,” and a blank space was placed after the word “OF.” Id. at 14. Those endorsements made the
      Note payable to the bearer.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016      Page 3 of 24
                 Quarter being the true place of beginning thence on the West line
                 of the Southeast Quarter North 00 degrees 00 minutes 00 seconds
                 West 649.00 feet to a set PK Nail; thence South 88 degrees 43
                 minutes 40 seconds East 335.60 feet to a set robar; 4 thence South
                 00 degrees 00 minutes 00 seconds West 649.00 feet to a set PK
                 Nail on the South line of the Southeast Quarter; thence on said
                 South line North 88 degrees 43 minutes 40 seconds West 335.60
                 feet to the true place of beginning, containing 5.00 acres and
                 being subject to the right of way for County Roads 300 North
                 and 450 East and being subject to 40.0 feet front side set backs on
                 County Roads 450 East and 300 North and being subject to 20.0
                 foot side setbacks in the East and North sides and being subject
                 to all easements and right of ways.5


      Appellant’s App. at 31. The Mortgage identified Mortgage Electronic

      Registration Systems, Inc. (“MERS”) as both “Mortgagee” and “nominee” for

      nBank and its “successors and assigns.” Id. at 17. In that capacity, MERS

      assigned the Mortgage to Wells Fargo in November 2010.


[5]   Enderle died on March 28, 2006. Under her will, Enderle’s undivided one-half

      interest in the Property passed in fee simple absolute to her two surviving

      daughters, Plaut and Ann Lee Zoll (“Zoll”). Id. at 34. Enderle left nothing to

      the children of her predeceased son, Warner Hunt (“Hunt”). Snider died on

      July 31, 2010, without leaving a will. Id. at 33. Accordingly, through intestate




      4
          In other descriptions, this was referred to as “a set rebar.” Appellant’s App. at 75.
      5
       We note that there are two similar but not identical legal descriptions of the property located at 3079 N. 450
      E., Bluffton. One description is found in the Mortgage, and the other one is found in the Affidavit in Aid of
      Title. Appellant’s App. at 31, 33. The quoted language is the description contained in the Mortgage and is the
      Property at issue. Id. at 31.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016              Page 4 of 24
      succession, Snider’s undivided one-half interest in the Property was divided as

      follows: one-third was transferred to Plaut, one-third to Zoll, and one-third was

      divided among Hunt’s four children, Mark T. Hunt, Jefferson W. Hunt, Gary

      W. Hunt, and Marcy R. Hunt. At the time of this action, Plaut and Zoll each

      owned a five-twelfths interest in the Property, and Hunt’s four children each

      owned a one-twenty-fourth interest in the Property.


[6]   The last payment under the Note was made on July 1, 2010.6 On September

      12, 2010, Wells Fargo sent a thirty-day demand letter (“Notice of Default”) to

      Snider at the Property. The Notice of Default informed Snider that the Note

      was in default, and if she did not act within thirty days, the payments on the

      Note would be accelerated. When Wells Fargo sent the Notice of Default, it

      was not aware that Snider was deceased. Id. at 97-98.


[7]   In mid-November 2010, Wells Fargo, who by that time held both the Note and

      Mortgage, filed its Complaint on Note and to Foreclosure the Mortgage. With

      the trial court’s permission, Wells Fargo filed an amended complaint in

      September 2012, followed one year later by a motion for summary judgment.

      Wells Fargo, however, withdrew that motion in February 2014, after our court




      6
       Wells Fargo notes that this date is consistent with Snider having died before the August 1, 2010 payment
      was due. Tr. at 6.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016            Page 5 of 24
      handed down Seth v. Midland Funding, LLC, 997 N.E.2d 1139 (Ind. Ct. App.

      2013).7


[8]   On April 21, 2014, Wells Fargo filed its Second Amended Complaint, alleging:

      Snider had executed the Note in the amount of $48,300; Enderle and Snider

      had entered into the Mortgage to secure repayment of the Note; Enderle and

      Snider had died on March 28, 2006 and July 31, 2010, respectively; no

      payments were made under the Note after July 1, 2010; the Note was in default,

      and Wells Fargo had accelerated the indebtedness due thereunder; and Wells

      Fargo was the holder of the Note and Mortgage. Appellant’s App. at 6-8. Wells

      Fargo demanded

               [a]n in rem judgment against the mortgaged property in a sum to
               be determined by the [trial c]ourt, consisting of the outstanding
               unpaid principal balance, together with interest from and after
               the date of default at the rate of 6.5% per annum, late charges,
               default-related expenses and advances, reasonable attorneys’ fees
               and costs of this action, and other expenses incurred in
               connection with this cause.


      Id. at 9. Plaut filed her Answer and Affirmative Defenses on April 24, 2014.




      7
        In Seth v. Midland Funding, LLC, 997 N.E.2d 1139, 1140 (Ind. Ct. App. 2013), our court discussed the
      designated evidence necessary to make a prima facie case in support of summary judgment in favor of a
      creditor claiming breach of a credit card contract. Wells Fargo, apparently, believed that its initial affidavit in
      support of summary judgment fell short of the standards set forth by the Seth court.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016                  Page 6 of 24
[9]    Wells Fargo filed a Motion for Summary and Default Judgment Entry and

       Decree of Foreclosure in October 2014.8 Id. at xiv, 42-44. In addition to its

       memorandum in support thereof, Wells Fargo submitted the following

       designated evidence: (1) the Note endorsed in blank; (2) the recorded

       Mortgage; (3) the recorded Assignment of Mortgage; (4) the recorded Affidavit

       in Aid of Title; (5) the recorded Personal Representative’s Deed; (6) proof of

       Service by Publication; (7) Affidavit Regarding Possession of Original

       Promissory Note; (8) Affidavit in Support of Judgment (“the Blalock

       Affidavit”), made by Karen Blalock, Wells Fargo’s Vice President of Loan

       Documentation; and (9) Non-Military Affirmation and Affidavit of Attorney’s

       Fees and Costs (“the Titus Affidavit”), id. at 64-67, made by Wells Fargo’s

       attorney, Leanne Titus.


[10]   The Blalock Affidavit stated that Wells Fargo was owed a total of $62,727.22

       under the Note, which represented principal, interest due for the period from

       July 1, 2010 to September 25, 2014, insurance and tax disbursements, and fees

       for property inspections and preservation. Id. at 60. Attached to the Blalock




       8
         Wells Fargo did not personally serve the motion for summary judgment on co-defendants Jefferson Hunt
       and Marcy Hunt, an omission that Plaut suggests prevents this court from considering Wells Fargo’s motion.
       Appellant’s Br. at 1 n.1. We disagree. First, we note that Jefferson and Marcy knew of the suit. In fact, prior
       to the filing of the motion for summary judgment, Jefferson and Marcy each filed with the trial court a
       written pro se response to the Second Amended Complaint. In Jefferson’s May 1, 2014 response, he
       specifically stated that he had been named an heir in connection with the Property, but that he had “no
       reason to oppose the foreclosure.” Appellant’s App. at 40. In Marcy’s July 14, 2014 response, she stated that
       she had “no interest in the claim of the mortgaged property or the debit [sic] that Annabel Snider had
       accrued.” Id. at 41. In light of these responses, neither party would have opposed Wells Fargo’s motion for
       summary judgment.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016               Page 7 of 24
       Affidavit, and referred to as Exhibit A, was a document titled, “Judgment

       Quote,” which Blalock offered as the business records (“the Business Records”)

       that she used to calculate the amounts due under the Note. Id. at 59, 61-63.

       The Blalock Affidavit also stated that a copy of the Notice of Default was

       attached as Exhibit B. Id. at 60.9 The Titus Affidavit affirmed that, in addition

       to the amount described in the Blalock Affidavit, Wells Fargo was entitled to

       recover reasonable attorney fees and fees and costs incurred in connection with

       the foreclosure action. Considering the Blalock Affidavit and the Titus

       Affidavit, the total sum due to Wells Fargo was $67,830.02.10


[11]   In November 2014, Plaut filed a response to Wells Fargo’s motion for summary

       judgment. Plaut offered no designated evidence; instead, she highlighted

       deficiencies in Wells Fargo’s designated evidence—deficiencies she claimed

       precluded summary judgment—and objected to the summary form of Blalock’s

       Business Records. Appellant’s App. at 77-88. Plaut alleged that, while Wells

       Fargo had offered into evidence the Note, the Mortgage, and Assignment of

       Mortgage as designated evidence, the trial court should not have considered

       these documents because Wells Fargo had failed to establish the authenticity or




       9
        While Wells Fargo had inadvertently failed to attach Exhibit B, the company later submitted the Notice of
       Default as Exhibit B by means of supplemental designated evidence. Id. at 95.
       10
          In her brief, Plaut cites to the trial court’s finding that Wells Fargo was owed $952.99 for publication costs.
       She notes, however, that proof of publication attached to Wells Fargo’s motion for summary judgment
       supported an amount of only $266.59. Appellant’s Br. at 7. Plaut made no argument regarding this
       discrepancy either here or before the trial court; accordingly, that issue is waived, and the trial court’s finding
       of $952.99 stands. Salsbery Pork Producers, Inc. v. Booth, 967 N.E.2d 1, 3 n.1 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016                  Page 8 of 24
       admissibility of any of those documents. Id. at 78. Plaut also maintained that

       Wells Fargo had not submitted a copy of the Notice of Default, which was

       referred to in the Note as a condition precedent to acceleration of the

       indebtedness. Id.


[12]   That same day, Plaut also filed a motion to strike Wells Fargo’s designated

       evidence. Pertinent to this appeal, Plaut argued that the trial court should

       strike: (1) the Business Records for lack of foundation; (2) the language in the

       Blalock Affidavit and the Titus Affidavit concerning possession of the Note on

       the basis of hearsay; and (3) the Note, Mortgage, and Assignment of Mortgage

       for lack of evidence establishing authenticity and admissibility. Id. at 78, 89-90.

       Plaut, however, did not contest that the Note and Mortgage were executed. In

       fact, Plaut admitted that Snider signed the Note and that Snider and Enderle

       signed the Mortgage. Appellant’s Br. at 4, 5.


[13]   In December 2014, Wells Fargo filed its Combined Response to Defendant’s

       Motion to Strike and Reply in Support of its Motion for Summary Judgment.

       Appellant’s App. at 91-96. Recognizing that Wells Fargo had, indeed, failed to

       attach the Notice of Default as Exhibit B to the Blalock Affidavit, Wells Fargo

       submitted that document to the trial court as supplemental designated evidence,

       asking the trial court to include it as Exhibit B to the Blalock Affidavit. Id. at 95,

       97, 99.


[14]   On February 11, 2015, in a minute entry, the trial court denied Plaut’s Motion

       to Strike Wells Fargo’s designated evidence. Id. at 102. About one month


       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 9 of 24
       later, the trial court held a hearing on Wells Fargo’s Motion for Summary

       Judgment, during which Plaut made an oral motion to reconsider the denial of

       the Motion to Strike. When no action was taken to reconsider the Motion to

       Strike within five days, that motion was deemed denied in accordance with

       Trial Rule 53.4(B) on April 2, 2015. On May 29, 2015, the trial court entered

       an in rem judgment in favor of Wells Fargo on its Motion for Summary

       Judgment. Id. at 2.


[15]   Plaut filed a Motion to Correct Error on June 26, 2015. The trial court denied

       that motion on September 8, 2015; however, that motion had already been

       deemed denied pursuant to Indiana Trial Rule 53.3(A), on August 10, 2015,

       which was forty-five days after the motion was filed.11 Plaut now appeals.


                                       Discussion and Decision
[16]   Plaut appeals from the trial court’s denial of her motion to correct error. Our

       standard of review in such cases is well established. We review a trial court’s

       ruling on a motion to correct error for an abuse of discretion. McEntee v. Wells

       Fargo Bank, N.A., 970 N.E.2d 178, 182 (Ind. Ct. App. 2012); Town of Plainfield v.

       Paden Eng’g Co., 943 N.E.2d 904, 908 (Ind. Ct. App. 2011), trans. denied. An

       abuse of discretion occurs when the trial court’s decision is contrary to the logic




       11
         Wells Fargo filed an Assignment of Judgment on September 10, 2015, assigning its judgment to the
       Federal Home Loan Mortgage Corporation. Appellant’s Br. at 3. This assignment is not an issue in this
       appeal.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016          Page 10 of 24
       and effects of the facts and circumstances before it or the reasonable inferences

       therefrom. McEntee, 970 N.E.2d at 181.


[17]   Here, the motion to correct error sought to set aside the entry of summary

       judgment. We review a trial court’s grant of summary judgment under the

       same standard as the trial court. Id. (citing Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009)). The purpose of summary judgment is to terminate litigation

       about which there can be no genuine issue of material fact and that may be

       determined as a matter of law. Regalado v. Estate of Regalado, 933 N.E.2d 512,

       518 (Ind. Ct. App. 2010). For summary judgment purposes, a fact is “material”

       if it bears on the ultimate resolution of relevant issues. FLM, LLC v. Cincinnati

       Ins. Co., 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012), trans. denied. We consider

       only those matters properly designated pursuant to Trial Rule 56 and construe

       all factual inferences and resolve all doubts as to the existence of a material

       issue in favor of the non-moving party. Young v. Hood’s Gardens, Inc., 24 N.E.3d

       421, 424 (Ind. 2015). A trial court’s grant of summary judgment is clothed with

       a presumption of validity, and the party who lost in the trial court has the

       burden of demonstrating that the grant of summary judgment was erroneous.

       FLM, 973 N.E.2d at 1173.


[18]   Plaut contends that Wells Fargo did not satisfy its burden of making a prima

       facie showing that there are no genuine issues of material fact and that Wells

       Fargo is entitled to summary judgment as a matter of law. In particular, Plaut

       raises two claims; first, that the trial court erred in finding that Wells Fargo was

       the party entitled to enforce the Note, and second, that the trial court erred in

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 11 of 24
       admitting and considering the Blalock Affidavit, which Plaut argues contains

       inadmissible hearsay.


                                        I. Holder of the Note
[19]   Plaut asserts there is a genuine issue of material fact regarding whether Wells

       Fargo is the real party in interest and, therefore, entitled to enforce the Note.

       Indiana has adopted Article 3 of the Uniform Commercial Code, which

       governs negotiable instruments. Lunsford v. Deutsche Bank Trust Co. Americas,

       996 N.E.2d 815, 821 (Ind. Ct. App. 2013). It is well-established that a

       promissory note secured by a mortgage is a negotiable instrument. Id. (citing

       First Valley Bank v. First Sav. & Loan Ass’n of Cent. Ind., 412 N.E.2d 1237, 1240-41

       (Ind. Ct. App. 1980)). The issuer of a note is obliged to pay a negotiable

       instrument according to its terms “to a person entitled to enforce the

       instrument.” Ind. Code § 26-1-3.1-412. “Person” includes an individual or an

       organization. Ind. Code § 26-1-1-201(3). A person entitled to enforce an

       instrument means (1) “the holder of the instrument,” or (2) “a nonholder in

       possession of the instrument who has the rights of a holder.” Ind. Code § 26-1-

       3.1-301 (emphasis added). “Holder” is defined as “the person in possession of a

       negotiable instrument that is payable either to bearer or to an identified person if

       the identified person is in possession of the instrument.” Ind. Code § 26-1-1-

       201(20)(a) (emphasis added). And “bearer” means, in relevant part, “the

       person . . . in possession of a negotiable instrument ... payable to bearer or

       endorsed in blank.” I.C. § 26-1-1-201(5)(B).



       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 12 of 24
[20]   Our court addressed a similar issue in Lunsford. There, the owner of real estate

       executed a promissory note to Homecomings Financial Network. Lunsford, 996

       N.E.2d at 817. The promissory note was secured by a mortgage that same day.

       Id. at 818. Homecomings endorsed the note to Residential Funding

       Corporation, who endorsed the note to Deutsche Bank as trustee. The

       mortgage was recorded and MERS, as nominee for Homecomings, assigned the

       mortgage to Deutsche Bank, as trustee. Id. at 822. Deutsche Bank produced

       the original note and mortgage for inspection at the summary judgment

       hearing. Accordingly, our court found that Deutsche Bank was a holder,

       entitled to enforce the loan documents. Lunsford, 996 N.E.2d at 818.


[21]   Under almost identical facts, Wells Fargo’s designated evidence in support of

       its motion for summary judgment included a recorded copy of the Note, of the

       Mortgage, and of the Assignment of Mortgage. Appellant’s App. at 11-14, 16-29,

       32. The Note, which reflected Snider’s $48,300 loan from nBank, was

       subsequently transferred from nBank to Wells Fargo. Appellant’s App. at 13, 14.

       Wells Fargo, in turn, endorsed the Note in blank, which made the Note payable

       to the bearer. Id. at 14. Wells Fargo’s counsel presented the original Note and

       Mortgage for inspection at the March 26, 2015 hearing on summary judgment.
       12
            Tr. at 6, 11. The Assignment of Mortgage, reflected that MERS, as nominee




       12
         Plaut argues that the evidence was insufficient to prove that Wells Fargo was the Holder of the Note
       entitled to enforce it, first because Blalock’s affidavit regarding Wells Fargo’s possession was not based on
       personal knowledge and, second, because Titus’s affidavit as to Wells Fargo’s possession was hearsay.
       Finding that Wells Fargo’s presentment of the original Note to the trial court was sufficient to prove its
       possession, we need not address these claims.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016               Page 13 of 24
       for nBank, had assigned the mortgage to Wells Fargo. 13 Because the instant

       case mirrors the facts in Lunsford, we conclude that Wells Fargo was a holder of

       the Note and Mortgage entitled to enforce the loan documents. See Buchanan v.

       HSBC Mortg. Servs., 993 N.E.2d 275 (Ind. Ct. App. 2013) (by presenting a note

       endorsed in blank, HSBC demonstrated that it was holder of bearer instrument

       and was entitled to enforce the note), trans. denied.


[22]   Plaut further offers that Wells Fargo may be in possession of the Note as a

       servicing agent rather than the actual holder, suggesting that Wells Fargo is not

       the real party in interest. We are unconvinced. The evidence shows not only

       that Wells Fargo is in possession of the original Note but also that the original

       Note was endorsed to Wells Fargo by nBank. As we stated in Collins v. HSBC

       Bank USA, National Ass’n, 974 N.E.2d 537, 542 (Ind. Ct. App. 2012), “There

       exists no better evidence to establish that [Wells Fargo] is the present holder of

       the note entitled to enforce the note under Indiana law.” Under these

       circumstances, we conclude that there was no genuine issue of material fact that

       Wells Fargo was the holder of the Note entitled to enforce the loan documents.




       13
         Notwithstanding Plaut’s suggestions to the contrary, the Mortgage and Note were clearly “associated.”
       Tr. at 11-12. The Assignment of Mortgage specified that Snider and Enderle had executed the Mortgage to
       secure a note, dated September 27, 2004, and in the amount of $48,300, details that mirrored those of the
       Note. The fact that Enderle signed only the Mortgage and not the Note is not unusual. In fact, the Mortgage
       contemplated this situation by providing that a co-signer of the Mortgage, who does not also sign the Note, is
       not obligated to pay the sums owed on the Note. Appellant’s App. at 25.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016            Page 14 of 24
                                         II. Designated Evidence
[23]   A party filing for summary judgment has the initial burden of both production

       and proof. “Relying on specifically designated evidence, the moving party

       bears the 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.”

       Robbins v. Trs. of Ind. Univ., 45 N.E.3d 1, 6 (Ind. Ct. App. 2015). “If the moving

       party meets this burden, the burden then shifts to the non-movant to set forth

       specifically designated facts showing that there is a genuine issue for trial.” Id.

       “If the movant fails to make this prima facie showing, then summary judgment

       is precluded regardless of whether the non-movant designates facts and

       evidence in response to the movant’s motion.” Haire v. Parker, 957 N.E.2d 190,

       195 (Ind. Ct. App. 2011), trans. denied. “‘An appellate court may affirm

       summary judgment if it is proper on any basis shown in the record.’” Id.

       (quoting Pfenning v. Lineman, 947 N.E.2d 392, 408-09 (Ind. 2011)).


[24]   “The Indiana Code provides, ‘if a mortgagor defaults in the performance of any

       condition contained in a mortgage, the mortgagee or the mortgagee’s assign

       may proceed in the circuit court of the county where the real estate is located to

       foreclose the equity of redemption contained in the mortgage.’” 14 McEntee, 970

       N.E.2d at 182 (quoting Ind. Code § 32-30-10-3(a)). “To establish a prima facie




       14
         Effective July 1, 2016, a mortgagee or its assign will be able to proceed not only in the circuit court of the
       county where the property is located, but also in the superior court or the probate court. 2016 Ind. Legis.
       Serv. P.L. 84-2016 (H.E.A. 1322) (WEST).

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016                Page 15 of 24
       case that it is entitled to foreclose upon the mortgage, the mortgagee or its

       assign must enter into evidence the demand note and the mortgage, and must

       prove the mortgagor’s default.” Id. Once the mortgagee establishes its prima

       facie case, the burden shifts to the mortgagor to show that the note has been

       paid in full or to establish any other defenses to the foreclosure. Id.


[25]   Here, Wells Fargo submitted the following designated evidence in support of

       summary judgment: the Note endorsed in blank, which showed that Snider

       had borrowed money from nBank who had, in turn, assigned the Note to Wells

       Fargo; the Mortgage, which showed that Snider and Enderle had each agreed

       to provide the Property as collateral for the Note; the recorded Assignment of

       Mortgage from MERS to Wells Fargo, which showed that Wells Fargo was in

       possession of the Mortgage; the Blalock Affidavit and Business Records; and

       the Notice of Default. The Blalock Affidavit and the Titus Affidavit, together,

       set forth that Wells Fargo was owed $67,830.02, as of September 25, 2014, in

       connection with the default on the Note. This amount included principal due

       on the Note, interest due on the principal, attorney fees, and costs for taxes,

       insurance, and filing fees. This designated evidence established a prima facie

       case that Wells Fargo was entitled to foreclose on the Mortgage to recover

       $67,830.02. The burden then shifted to Plaut to dispute the amount due, show

       that the Note had been paid in full, or establish any other defenses to the

       foreclosure. McEntee, 970 N.E.2d at 182. Plaut, however, offered no

       designated evidence. Instead, she chose to attack, by means of a motion to

       strike, the admissibility of: (1) the Note and Mortgage, challenging their


       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 16 of 24
       authenticity; and (2) the Blalock Affidavit and attached Business Records,

       claiming they were inadmissible hearsay. This strategy failed, however, when

       the trial court denied Plaut’s motion to strike Wells Fargo’s designated

       evidence.


[26]   On appeal, Plaut neither challenges the existence or authenticity of the Note or

       Mortgage, nor does she contest that monthly payments under the Note ceased.

       In other words, she does not challenge that the Note and Mortgage are in

       default. Instead, she claims that summary judgment should not have been

       granted in favor of Wells Fargo because there was insufficient admissible

       evidence to support the trial court’s determination regarding “the components

       and the amounts of mortgage indebtedness.” Appellant’s Br. at 10. Plaut does

       not object to the Titus Affidavit, which sets forth that Wells Fargo is owed

       $240.00 for “total private service of process costs,” $275.00 for the “cost of title

       evidence,” the sum of $13.31 for mailing expenses, and $3,322.50 for attorney

       fees. Appellant’s Br. at 12; Appellant’s App. at 66. Nor does she contest that

       Wells Fargo is owed $286.00 for filing fees and $13.00 for Sheriff’s service fee.


[27]   Plaut does object, however, to the trial court’s use of the Blalock Affidavit to

       calculate the amount owed to Wells Fargo in connection with the mortgage

       foreclosure. In her sworn affidavit, Blalock stated:


               I am a Vice President of Loan Documentation [for] Wells Fargo
               Bank, N.A., the servicer of the mortgage (hereinafter Wells
               Fargo). In the regular performance of my job functions, I am
               familiar with the business records maintained by Wells Fargo for
               the purpose of servicing mortgage loans. These records . . . are

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 17 of 24
               made at or near the time by, or from information provided by,
               persons with knowledge of the activity and transactions reflected
               in such records, and are kept in the ordinary course of business
               activity conducted regularly by Wells Fargo. It is the regular
               practice of Wells Fargo’s mortgage servicing business and
               activities to make these records. In connection with making this
               Affidavit, I have acquired personal knowledge of the matters
               stated herein by personally examining these business records for
               loan number XXXXXX6068 (the “mortgage loan”). A genuine
               and authentic copy of the business records upon which this
               [A]ffidavit is based are attached hereto as Exhibit “A.”


       Id. at 59. Wells Fargo’s Business Records, which were attached to the Blalock

       Affidavit, identified the components of the indebtedness due, including

       $44,545.70 in principal, $12,254.89 in interest from July 1, 2010 through and

       including September 25, 2014, and $5,926.63, to cover the costs of

       disbursements for hazard insurance, tax disbursements, and property

       inspections. Id. at 60, 61-63. Plaut contends that the Blalock Affidavit should

       not have been considered because it did not conform to the reasoning of Seth v.

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


[28]   We find that a discussion of Seth, particularly its analysis and findings regarding

       affidavits of money owed, is relevant and helpful to our discussion of the issues

       before us today. In Seth, the trial court granted summary judgment in favor of

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

       non-payment of credit card debt. Seth, 997 N.E.2d at 1140. To make a prima

       facie case, Midland had to show that Seth opened a credit card account with

       Columbus Bank and Trust, that Seth owed Columbus Bank the amount alleged


       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 18 of 24
       in the complaint, and that Midland was the assignee of that alleged debt. Id. In

       support of summary judgment, Midland designated an Assignment of

       Accounts; an affidavit of Andrew Carlson, a manager for Jefferson Capital

       Systems; an Affidavit of Debt executed by Erin Degel, an employee of Midland

       Credit Management, which was the servicing agent for Midland; and

       uncertified and unsworn copies of a document titled Transaction History, a

       credit card statement, terms of a credit card agreement, and an untitled

       document with “field data.” Id. 1140-41. From this designated evidence, the

       trial court found no genuine issue of material fact and granted summary

       judgment in favor of Midland.


[29]   On appeal, Seth argued that Midland had not satisfied its burden of making a

       prima facie showing that there was no genuine issue of material fact. Id. at

       1140. Specifically, Seth maintained that the Carlson affidavit and the Degel

       affidavit—the only designated evidence that the Seth court found was

       “potentially proper Rule 56 evidence”--were based on inadmissible hearsay or

       otherwise insufficient to support summary judgment. Of those two affidavits,

       only the Degel affidavit is pertinent to this appeal. 15 In her affidavit, Degel

       relied on transactions made by Columbus and Jefferson and a review of




       15
          The Carlson affidavit affirmed that certain credit card accounts issued by Columbus Bank were
       subsequently transferred to CompuCredit Corporation, who in turn transferred them to Jefferson Capital.
       Jefferson “subsequently sold many of the accounts to Midland.” Seth, 997 N.E.2d at 1141 (emphasis added).
       While conceding that this evidence proved that Midland acquired “certain” accounts issued by Columbus
       Bank, the Seth court concluded that, because Seth’s name and account number were absent in Carlson’s
       affidavit and attached exhibit, this designated evidence was insufficient to prove that Midland was the proper
       party to sue Seth for the amount due on that specific credit card. Id. at 1141-42.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016             Page 19 of 24
       unspecified business documents to conclude that Seth owed Midland $3,410.87

       in unpaid credit card debt. On appeal Seth asserted that this sum was based on

       inadmissible hearsay and could not be considered due to noncompliance with

       Trial Rule 56(E).


[30]   “The requirements of T.R. 56(E), including the requirement that supporting

       and opposing affidavits shall be made on personal knowledge, are mandatory.”

       City of Gary v. McCrady, 851 N.E.2d 359, 365 (Ind. Ct. App. 2006) (emphasis

       added). The Seth court found that Degel’s status as an employee of Midland’s

       servicing agent did not establish that she had personal knowledge pertinent to

       Midland’s complaint against Seth and, therefore, concluded that Degel’s

       affidavit should not have been relied on to calculate Seth’s outstanding debt.

       Seth, 997 N.E.2d at 1142. Degel’s affidavit also fell short because Degel’s

       knowledge of the facts and the amounts owed by Seth was limited to “what she

       had gleaned from her review of unspecified business records.” Id. Accordingly,

       the Seth court found that Degel’s affidavit was based entirely on inadmissible

       hearsay—hearsay that even the business records exception under Indiana

       Evidence Rule 803(6) could not salvage. 16 Id. at 1143. Disregarding the

       inadmissible hearsay evidence contained in the Degel affidavit, the Seth court

       concluded that Midland had failed as a matter of law to make a prima facie case




       16
         Degel did not attach to her affidavit a copy of the business records that she consulted in arriving at Seth’s
       debt. Further, the Seth court found that the documents did not satisfy the business records exception,
       pursuant to Evidence Rule 803(6), because Degel’s affidavit did “not purport to authenticate any business
       records, which is the sole function of that exception. Seth, 997 N.E.2d at 1143.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016               Page 20 of 24
       that it was entitled to summary judgment on the complaint. Id. The Seth court

       reversed the trial court’s grant of summary judgment in favor of Midland.


[31]   The instant case is distinguishable from Seth. Under Indiana Trial Rule 56(E),

       it was necessary that Blalock’s Affidavit: was made on personal knowledge; set

       forth such facts as would be admissible in evidence; and showed affirmatively

       that Blalock was competent to testify to the matters stated therein. Blalock

       stated that she was the Vice President of Loan Documentation for Wells Fargo

       and that in the regular performance of her job functions she was familiar with

       the business records maintained by Wells Fargo for the purpose of servicing

       mortgage loans. Appellant’s App. at 59. Blalock also affirmed that she had

       acquired personal knowledge of the sums itemized in her affidavit by personally

       examining the attached business records relating to the loan. Id. Unlike

       Degel’s affidavit in Seth, Blalock’s Affidavit, regarding amounts due, was based

       on her personal knowledge as a Vice President of Loan Documentation.


[32]   Also, unlike in Seth, Blalock attached to her affidavit the Business Records upon

       which she relied. Plaut argues that the Business Records attached to Blalock’s

       Affidavit constituted hearsay, did not qualify for admission under the business

       records exception, and should have been excluded. Hearsay is an out-of-court

       statement offered into evidence to prove the truth of the matter asserted. Ind.

       Evidence R. 801(c). Hearsay is inadmissible unless it falls under a recognized

       exception. Evid. R. 802. Among the numerous exceptions to the hearsay rule

       is the business records exception, which provides:



       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 21 of 24
               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:


               (6) Records of a Regularly Conducted Activity. A record of an
               act, event, condition, opinion, or diagnosis 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) or (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.


       Evid. R. 803(6).


[33]   In this case, Blalock’s Affidavit affirmed that the Business Records were “made

       at or near the time by, or from information provided by, persons with

       knowledge of the activity and transactions reflected in such records, and are

       kept in the ordinary course of business activity conducted regularly by Wells

       Fargo. It is the regular practice of Wells Fargo’s mortgage servicing business

       and activities to make these records.” Appellant’s App. at 59. The trial court

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 22 of 24
       reasonably believed that the Business Records were made in the ordinary course

       of Wells Fargo’s business of enforcing a loan in default and that, as Vice

       President of Loan Documentation, Blalock was qualified to set forth the

       amount due under the Note and Mortgage. Here, there is no evidence that the

       source of the information and the method and circumstances of the preparation

       of the Business Records suggest a lack of trustworthiness.17


[34]   Plaut takes issue with the fact that that the Business Records provide no

       evidence of charges or credits made before July 1, 2010 and that a lump sum

       claim for interest in the amount of $12,254.89 was charged for the time period

       after July 1, 2010. The Note reflected that Snider borrowed $48,300, to be paid

       at 6.5% interest over thirty years. The first payment was made on November 1,

       2004, and the last payment was made on July 1, 2010. Amortized over thirty

       years, the amount of each monthly installment payment was $305.29. These

       payments did not include escrow for property tax or insurance; instead, the

       payments reflected repayment of only the principal and interest. Wells Fargo

       does not allege that Snider missed payments prior to July 1, 2010, and Plaut

       does not allege that Snider made additional payments. Under the facts before

       us, the amount due on the Note appears to have been calculated by running the

       numbers through an amortization schedule and thereby determining interest

       owed. We conclude that Wells Fargo designated sufficient evidence to



       17
          Plaut argues that the Business Records were an improper summary under Indiana Rule of Evidence 1006.
       We need not reach this issue because Wells Fargo did not offer this document as a summary, but instead,
       offered them under the business records exception.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016       Page 23 of 24
       establish that the Note is in default and that Plaut failed to designate any

       evidence that might excuse that default. The trial court properly granted

       summary judgment in favor of Wells Fargo.


[35]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A05-1509-MF-1390 | June 15, 2016   Page 24 of 24
