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Zelman v. Capital One Bank (USA) N.A.

Court of Appeals of Indiana

October 10, 2019

Diana F. Zelman, Appellant-Defendant,
v.
Capital One Bank (USA) N.A., Appellee-Plaintiff

          Appeal 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.

          BAILEY, JUDGE.

         Case Summary

         [¶1] 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.

         [¶2] We reverse and remand.

         Facts and Procedural History

         [¶3] 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 of Plaintiff
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 of ...

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