Bailey, J.
Case Summary
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.
….
Zelman contends that summary judgment was not warranted because Bank failed to support its summary judgment motion with admissible designated evidence. 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. See Seth v. Midland Funding, LLC, 997 N.E.2d 1139, 1140 (Ind. Ct. App. 2013) (discussing designated evidence necessary to make prima facie case in support of summary judgment in favor of creditor claiming breach of credit card contract). Zelman alleges Bank failed to make that showing because: (1) Bank failed to attach to its Affidavit of Debt copies of documents to which the Affidavit refers, as required by Indiana Trial Rule 56(E); (2) the Affidavit of Debt was not based on personal knowledge as required by Trial Rule 56(E); and (3) Bank failed to lay a proper foundation as to its Exhibit titled “Capital One Customer Agreement” (“Customer Agreement”) and its Exhibit B, as required to authenticate those documents under the business record exception to hearsay, Indiana Evidence Rule 803(6).
Indiana Trial Rule 56 permits parties to submit affidavits in support of their motions for summary judgment. However, subsection E of that rule imposes certain mandatory requirements;…
Thus, in ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial. E.g., D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App. 2018), trans. denied. Such evidence does not include inadmissible hearsay contained in an affidavit. See, e.g., Holmes v. Nat’l Collegiate Student Loan Trust, 94 N.E.3d 722, 725 (Ind. Ct. App. 2018). Nor does it include documents that are unsworn statements or unverified exhibits. Greenfield v. Arden Seven Penn Partners, L.P., 757 N.E.2d 699, 702 n.3 (Ind. Ct. App. 2001), trans. denied. Moreover, it is well settled that “‘if a document is relied upon to support a motion for summary judgment, it must be exhibited in full; affidavits as to its substance, effect or interpretation are not sufficient.’” Reef v. Asset Acceptance, LLC, 43 N.E.3d 652, 654 (Ind. Ct. App. 2015) (quoting Marich v. Kragulac, 415 N.E.2d 91, 100 (Ind. Ct. App. 1981), disapproved of on other grounds by Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099 (Ind.2012)); see also Lukacs v. Kluessner, 154 Ind. App. 452, 456-57, 290 N.E.2d 125, 128 (1972).
Here, neither the “Customer Agreement” attached to Bank’s complaint, nor Zelman’s purported credit card statements attached to the summary judgment motion as Exhibit B were certified or sworn; therefore, they were inadmissible hearsay and were not proper Rule 56 evidence. [Footnote omitted.] See Seth, 997 N.E.2d at 1140-41 (holding uncertified, unsworn exhibits consisting of alleged transaction history, credit card statement, and terms of credit card agreement were inadmissible and not proper Rule 56 evidence).
Further, the Affidavit of Debt does not authenticate those unsworn and unverified documents as records of regularly conducted business activity pursuant to the hearsay exception specified in Rule of Evidence 803(6). [Footnote omitted.] The affiant, a “Litigation Support Representative” employed by Bank’s affiliate, stated that she had “access to” the Bank’s “relevant systems and documents … needed to verify” the information in the affidavit, but never states what those documents are. App. at 28-29. The affiant further states that she has “personal knowledge of the manner and method by which [Bank] creates and maintains certain business books and records, including computer records of customer accounts.” However, she does not identify the “books and records” to which she refers. She also fails to identify the Customer Agreement attached to the complaint as “the Customer Agreement governing use of [Zelman’s] account,” id. at 29, or identify the Customer Agreement or credit card statements in Exhibit B as “computer records of customer accounts,” id. at 28. Similarly, the affiant refers to the Bank “books and records reviewed,” but does not identify any such documents. Id.
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….Rather, the affiant’s knowledge of the facts asserted in her affidavit “is limited to what she has gleaned from her review of unspecified business records,” and her affidavit is, therefore, “based entirely upon hearsay, in violation of Trial Rule 56(E).”… 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. Seth, 997 N.E.2d at 1142.
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. Id. at 1143. 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. [Footnote omitted.] T.R. 56(E); see also Reef, 43 N.E.3d at 654 (stating documents in support of summary judgment must be exhibited, and affidavits as to their substance are not sufficient).
Conclusion
Bank failed to designate admissible evidence establishing that Zelman had opened a credit card account with Bank and that Zelman owed Bank the amount alleged in the compliant. Zelman has shown prima facie error in the trial court order granting Bank summary judgment; therefore, we reverse that order and remand for further proceedings.
Reversed and remanded.
Najam, J., and May, J., concur.