COA reverses judgment for bank in credit card debt appeal

A bank has failed to prove that one of its customers is thousands of dollars behind on her credit card payments, the Indiana Court of Appeals ruled Thursday.

More than 20 years after Diana Zelman opened a credit card account with Capital One Bank, she was alleged to have an unpaid balance of $6,292.34 on the card. Capital One filed a complaint against her concerning the unpaid card, but Zelman denied the allegations.

When it moved for summary judgment, Capital One designated evidence in support along with its complaint and exhibits, including Zelman’s response, the bank’s memorandum in support of summary judgment and an affidavit of debt. Zelman argued in a motion to strike that Capital One had failed to designate admissible evidence in support of its motion, but a trial court ultimately granted summary judgment to the bank.

Appealing that ruling, Zelman contended that the bank failed to attach to its affidavit of debt copies of documents to which the affidavit refers, and that the affidavit was not based on personal knowledge as both required by Trial Rule 56(E). She also asserted that the bank failed to lay a proper foundation for its exhibit titled Capital One Customer Agreement and its exhibit B, as required to authenticate those documents under the business record exception to hearsay, Indiana Evidence Rule 803(6).

The Indiana Court of Appeals reversed in Diana F. Zelman v. Capital One Bank (USA) N. A., 19A-CC-00989, finding that neither the customer agreement nor Zelman’s purported credit card statements attached to the summary judgment motion were certified or sworn. Thus, the court concluded, they were inadmissible hearsay and were not proper Rule 56 evidence.

It further noted that while Capital One’s witness stated she had access to documents needed to verify the affidavit’s information, she never stated what the documents were, nor identified the customer agreement attached to the complaint.

“Thus, the Affidavit of Debt did not 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,” Judge L. Mark Bailey wrote. “And the affiant’s employment as a litigation support representative of Bank’s affiliate does not, in itself, establish her personal knowledge of any of the facts relating to the complaint.

“In addition, because the affiant explicitly states that her affidavit is based upon her personal knowledge of facts obtained from Bank’s business records, she was required to attach to, or submit with, her affidavit sworn, certified, or self authenticated copies of any such records upon which she relied. … She did not attach to or submit with her affidavit any such records, and her failure to do so means we must disregard her affidavit,” the panel concluded.

Zelman was found to have shown prima facie error, and the appellate court therefore remanded for further proceedings.

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