Diana F. Zelman, Appellant-Defendant,
Capital One Bank (USA) N.A., Appellee-Plaintiff
from the Delaware Circuit Court The Honorable Thomas A.
Cannon Jr., Judge Trial Court Cause No. 18C05-1609-CC-714
Attorney for Appellant Jason R. Delk Muncie, Indiana.
Diana Zelman ("Zelman") appeals the trial
court's order granting summary judgment to Capital One
Bank (USA) N.A. ("Bank") on its claim against
Zelman for nonpayment of credit card debt. Zelman raises one
issue on appeal which we restate as whether the trial court
erred when it concluded that Bank had satisfied its burden of
proof under Indiana Trial Rule 56.
We reverse and remand.
and Procedural History
On September 30, 2016, Bank filed a complaint alleging that
Zelman had an unpaid credit card balance owed to Bank. On
December 15, 2016, Zelman filed an answer in which she denied
all the allegations of the complaint. On January 3, 2019,
Bank filed a motion for summary judgment in which it
designated the following evidence in support: the complaint
and exhibits; Zelman's answer; Bank's memorandum in
support of summary judgment; and Bank's "Affidavit
of Debt," attached to the memorandum as Exhibit A. The
latter document stated, in relevant part:
PERSONALLY APPEARED before the undersigned officer. duly
authorized to administer oaths, Jamie Williams, who states
under oath as follows:
1. I am over 18 years old and competent to testify to the
matters set forth herein. I am an employee of Capital One
Services, LLC, ("COSLLC"), an agent and affiliate
CAPITAL ONE BANK (USA), N.A. ("Capital One").
COSLLC provides services to Capital One in connection with
its credit card and related banking practices and my job
responsibilities as Litigation Support Representative provide
me with access to all relevant systems and documents of
Capital One needed to validate the below information. I am
authorized by Capital One to testify to the matters set forth
herein. As a result of the scope of my job responsibilities,
I have personal knowledge of the manner and method by which
Capital One creates and maintains certain business books and
records, including computer records of customer accounts.
2. The Capital One books and records are made in the course
of Capital One's regularly conducted business activity
and it is a regular practice-of Capital One to make these
books and records. Each of the Capital One books and records
reviewed are made:
(1)at or near the time the events they purport to describe
occurred, by a person with knowledge of the acts and events;
or, (2) by a computer or other similar digital means, which
contemporaneously records an event as it occurs.
3. The books and records of Capital One show that
Defendant(s) opened a credit card account with Capital One on
03/01/1997 for the purpose of obtaining an extension of
credit and did thereafter use or authorize the use of the
account for the acquisition of goods, services, or cash
advances in accordance with the Customer Agreement governing
use of that account. The last payment attempt in the amount