In Zelman v. Capital One, 133 N.E.3d 244 (Ind. Ct. App. 2019), the Indiana Court of Appeals reversed the trial court's summary judgment in favor of a credit card lender based upon the lender's failure to "lay a proper foundation to authenticate the Customer Agreement or credit card statements as business records admissible under Evidence Rule 803(6)'s hearsay exception."
Respectfully, I don't entirely agree with the Court's analyis, but admittedly I don't handle credit card collection cases. Nevertheless, the opinion is notable for parties and their counsel who seek summary judgments in debt collection cases. The Court held:
To support its motion for summary judgment, Bank was required to show that Zelman had opened a credit card account with Bank and that Zelman owed Bank the amount alleged in the complaint.
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... the Affidavit of Debt did not lay a proper foundation to authenticate the Customer Agreement or credit card statements as business records admissible under [Rule 806].
For the technical details and related law upon which the Court made its decision, please review the opinion. Key problems surrounded the fact that the affiant was an employee of a third party that had acquired the debt and had not personally examined all of the business records related to the loan. Again, bear in mind this was not a mortgage foreclosure action or a suit based upon a promissory note.
Zelman is similar to Holmes v. National Collegiate Student Loan Trust, 94 N.E.3d 722 (Ind. Ct. App. 2018) , which dealt with school loan debt and which I discussed on 1/13/19.
Here are some other posts related to Indiana affidavits and summary judgment procedure:
- Must Indiana Affidavits Be Signed Under The Penalties Of Perjury?
- Conclusory Statements About Payment Default Doom Lender’s Motion For Summary Judgment
- Proving You’re The Holder Of The Note
__________I represent parties in real estate and loan-related disputes. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.
